http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

PETITIONER: HUSSAINARA KHATOON & ORS.

       Vs.

RESPONDENT: HOME SECRETARY, STATE OF BIHAR, GOVT. OF BIHAR, PATNA

DATE OF JUDGMENT12/02/1979

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S. KOSHAL, A.D.

CITATION:  1979 AIR 1360            1979 SCR  (3) 169  1980 SCC  (1)  81  CITATOR INFO :  RF         1980 SC1789  (112)  RF         1981 SC 746  (3)  RF         1981 SC 939  (2)  E          1981 SC1675  (1,2)  R          1982 SC1167  (1,2)  R          1983 SC 361  ((2)19)  RF         1985 SC 231  (2)  R          1986 SC 180  (39)  RF         1986 SC1773  (12)  F          1987 SC 149  (9)  RF         1988 SC1531  (87)  F          1989 SC1335  (71)  RF         1992 SC1701  (1,21,28,29,31,32,35)

ACT:      Administration of  Justice-Pre-trial detention-Right of under-trial prisoner  to have  a  speedy  trial-Art.  21  of Constitution of India.      Pre-trial release-Concept  of-Determinative factors  in grant  of  bail  and  release  of  under-trial  prisoner  on personal bond without monetary obligation explained.

HEADNOTE:      In their  petition for  the issue  of a  writ of habeas corpus the petitioners stated that a large number of men and women including  children were  in jails  for years awaiting trial in  courts of  law and  that  the  offences,  even  if proved, would  not warrant  punishment for  more than  a few months. Although sufficient opportunity was given, the State did not appear before the Court.      Directing the  release  of  the  undertrials  on  their executing a personal bond. ^      HELD : (Per Bhagwati & Koshal, JJ.)      1. A  procedure which  keeps  large  number  of  people behind bars  without trial  for  long,  cannot  possibly  be regarded as  "reasonable, just  or fair"  so  as  to  be  in conformity with the requirement of Art. 21. It is necessary, therefore, that the law as enacted by the Legislature and as administered  by   the  courts  must  radically  change  its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

approach to pre-trial detention and ensure ‘reasonable, just and fair’  procedure which  has a creative connotation after the decision  of the  Supreme Court in Maneka Gandhi’s case. [174 C-D]      2. Speedy  trial is  of the essence of criminal justice and, therefore,  delay in trial by itself constitutes denial of  justice.   Though  speedy   trial  is  not  specifically enumerated as  a fundamental  right, it  is implicit  in the broad sweep and content of Art. 21. Speedy trial which means reasonably expeditious  trial, is  an integral  part of  the fundamental right  to life and liberty enshrined in Art. 21, [179 H, 180 C, F]      Art. 21  confers 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 Art.  21 and  he would  be entitled  to  enforce  such fundamental right  and secure  his  release.  Any  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. [180 D-E] 170           Maneka Gandhi v. Union of India, [1978] 2 SCR 621; referred to.      3. Expeditious  trial and  freedom from  detention  are part of human rights and basic freedoms. The judicial system which permits  incarceration  of  men  and  women  for  long periods of  time without  trial is  denying human  rights to such undertrials  and withholding  basic freedoms from them. Law has  become for them an instrument of injustice and they are helpless  and despairing  victims of  the callousness of the legal and judicial system. [173 C-E, F]      4.  One  reason  why  our  legal  and  judicial  system continually denies  justice to  the poor by keeping them for long   years   in   pretrial   detention   is   the   highly unsatisfactory bail  system, which  suffers from  a property oriented approach.  It proceeds  on the erroneous assumption that risk  of monetary  loss is  the only  deterrent against fleeing from  justice. Even after its re-enactment, the Code of Criminal Procedure continues to adopt the same antiquated approach. Where an accused is to be released on his personal bond, it  insists that  the bond  should contain  a monetary obligation requiring  the accused  to pay  a sum of money in case he  fails to  appear at the trial. Moreover, as if this were not  sufficient  deterrent  to  the  poor,  the  courts mechanically and  as a  matter of  course  insist  that  the accused should  produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to  pay the amount of bail in case the accused fails to appear to answer the charge. [174 E-G]      This system  of bails operates very harshly against the poor and  it is  only the  non-poor who  are  able  to  take advantage of  it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the Court is so  unrealistically excessive that in a majority of cases the poor  are unable to satisfy the police or the Magistrate about their  solvency for  the amount  of the bail and where the bail  is with  sureties, as  is  usually  the  case,  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

becomes an  almost impossible  task for  the  poor  to  find persons sufficiently  solvent  to  stand  as  sureties.  The result is  that either  they are  fleeced by  the police and revenue officials  or by touts and professional sureties and sometimes they  have even  to incur debts for securing their release or,  being unable  to obtain  release, they  have to remain in  jail until such time as the court is able to take up their  cases for  trial, leading  to grave  consequences, namely, (1)  though presumed innocent, they are subjected to psychological and  physical deprivations  of jail  life, (2) they are  prevented from  contributing to the preparation of their defence and (3) they lose their job, if they have one, and are  deprived of  an  opportunity  to  work  to  support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. [174 G-175 D]      The bail system, as it operates today, is thus a source of great  hardship to  the poor  and if the civil effects of poverty are  to be  eliminated and a fair and just treatment assured to  the poor in the administration of justice, it is imperative  that   the  bail  system  should  be  thoroughly reformed so  that it  should be  possible for  the poor,  as easily as  the rich,  to obtain  pre-trial  release  without jeopardizing the interest of justice. [177 C-D]      Risk of monetary loss is not the only deterrent against fleeing from justice. There are also other factors which act as equal  deterrents against fleeing. Therefore, the courts, even under  the law  as it  stands today,  must abandon  the antiquated concept  under which pre-trial release is ordered only against  bail with sureties. If the court is satisfied, after taking into account, on the basis of 171 information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. [177 E, G, H]      5. To  determine whether  the accused  has his roots in the community  which would deter him from fleeing, the court should take  into account  the following  factors concerning the  accused:  (1)  The  length  of  his  residence  in  the community,  (2)  his  employment  status,  history  and  his financial condition,  (3) his family ties and relationships, (4) his  reputation, character  and monetary conditions, (5) his prior  criminal record  including any  record  of  prior release on  recognizance or  on bail,  (6) the  identity  of responsible members of the community who would vouch for his reliability, (7)  the nature  of the offence charged and the apparent probability  of conviction  and the likely sentence in so  far as  these factors are relevant to the risk of non appearance, and (8) any other factors indicating the ties of the accused  to the  community or  bearing on  the  risk  of wilful failure to appear. [178 A-E]      If the  court is  satisfied on  a consideration  of the relevant factors  that the  accused  has  his  ties  in  the community  and   there  is   no  substantial  risk  of  non- appearance, the accused may, as far as possible, be released on his  personal bond. If facts are brought to the notice of the court  showing that,  having regard to the condition and back-ground of  the accused,  his previous  record  and  the nature and  circumstances of  the offence,  there may  be  a substantial risk  of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal  or the offence is serious, the court may not release  the accused on his personal bond and may insist on bail  with  sureties.  But  in  the  majority  of  cases, considerations like  family ties  and relationship, roots in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

the community,  employment status  etc. may prevail with the court in  releasing the  accused on  his personal  bond  and particularly in cases where the offence is not grave and the accused is  poor or  belongs to  a  weaker  section  of  the community,  release  on  personal  bond  could,  as  far  as possible, be preferred. But even while releasing the accused on personal  bond it  is necessary to caution the court that the amount  of the  bond which  it fixes should not be based merely on  the nature of the charge. The decision as regards the amount  of the bond should be an individualised decision depending on  the individual  financial circumstances of the accused and the probability of his absconding. The amount of the  bond  should  be  determined  having  regard  to  these relevant  factors  and  should  not  be  fixed  mechanically according to  a schedule  keyed to the nature of the charge. Otherwise, it  would be  difficult for the accused to secure his release  even by  executing a personal bond, it would be very harsh  and oppressive  if he is required to satisfy the court-and what  is said  in regard  to the  court must apply equally in  relation to  the police while granting bail-that he is  solvent enough  to pay  the amount  of the bond if he fails to  appear at the trial and in consequence the bond is forfeited. The  inquiry into the solvency of the accused can become a  source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be  insisted upon as a condition of acceptance of the personal bond. [178 F-179 D]      6. Necessary  to provide  by an  amendment of the penal law  that   if  an  accused  wilfully  fails  to  appear  in compliance with  the promise contained in his personal bond, he shall be liable to penal action. [177 F]      7. High  time that  the State  Government realised  its responsibility to the people in the matter of administration of justice  and set  up more  courts for the trial of cases. [180 H] 172 Pathak J. (concurring)      (1) The  primary principle  of  criminal  law  is  that imprisonment may  follow a judgment of guilt, but should not precede it.  There is  also another principle which makes it desirable to  ensure that  the accused is present to receive his sentence in the event of being found guilty. [181 E]      (2) It  is indisputable that an unnecessarily prolonged detention in  prison of  undertrials before being brought to trial is  an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock  of a  civilized legal  system  must  view  with distress  patently   long  periods  of  imprisonment  before persons awaiting  trial can  receive the  attention  of  the administration of justice. [181 D]      (3) The  Code of  Criminal Procedure  both the old Code and the  new include  provisions for the release of a person on bail  or on  the execution of a bond without sureties for his appearance.  There is  an amplitude of judicial power to release  a  prisoner  awaiting  trial  on  bail  or  on  the execution of  a  personal  bond  without  sureties  for  his appearance within  the existing  provisions of  the Code  of Criminal Procedure  and  it  is  for  the  Courts  to  fully acquaint themselves  with the  nature and  extent  of  their discretion in  exercising it.  It is  no longer  possible to countenance a  mechanical exercise of the power. What should be  the   amount  of   security  required  or  the  monetary obligation demanded  in a  bond is  a matter calling for the careful consideration  of several factors. The entire object being only  to ensure  that the  undertrial does not flee or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

hide himself  from trial,  all the  relevant  considerations which enter  into the determination of that question must be taken into account. [181 E, 182 B-C]      (4) The  abuses attendant  on the  prevailing system of pre-trial release in India could be avoided or, in any event greatly  reduced,   if  considerations   like  "nature   and circumstances of  the offence  charged, the  weight  of  the evidence against  the accused,  the accused’s  family  ties, employment,  financial   resources,  character   and  mental condition, the length of his residence in the community, his record of convictions, and his record or appearance at court proceedings or  of flight to avoid prosecution or failure to appear at  court proceedings",  are taken into consideration when  determining   pre-trial  release  and  the  amount  of security or monetary obligation to be imposed. [182 G, E-F]           United States  Bail Reforms Act, 1966: 18 USS 3146      (b), Moti  Ram & Ors. v. State of M.P. [1978] 4 SCC 47;      referred to.      (5) Urgent  need for  a clear and explicit provision in the Code  of Criminal  Procedure enabling  the  release,  in appropriate cases,  of an  under trial  prisoner on his bond without sureties and without any monetary obligation.[183 B]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979.      Mrs. K. Hingorani for the Petitioners      S. M. Jha and U. P. Singh for the Respondent.      The Judgment  of Bhagwati and Koshal, JJ. was delivered by Bhagwati, J. Pathak, J. gave a separate Opinion. 173      BHAGWATI, J.-This  petition for a writ of habeas corpus discloses  a   shocking  state   of  affairs  in  regard  to administration  of   justice  in  the  State  of  Bihar.  An alarmingly  large   number  of   men  and   women,  children including, are  behind prison  bars for years awaiting trial in courts  of law.  The offences with which some of them are charged are  trivial,  which,  even  if  proved,  would  not warrant punishment for more than a few months, perhaps for a year or  two, and  yet these unfortunate forgotten specimens of humanity  are in  jail, deprived  of their  freedom,  for periods ranging from three to ten years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial. We are shouting from house  tops about  the protection  and  enforcement  of human rights.  We are  taking  passionately  and  eloquently about the  maintenance and  preservation of  basic freedoms. But, are  we not  denying human  rights  to  these  nameless persons who  are languishing in jails for years for offences which perhaps  they might  ultimately be  found not  to have committed ? Are we not withholding basic freedoms from these neglected and  helpless human beings who have been condemned to a  life of imprisonment and degradation for years on end? Are expeditious trial and freedom from detention not part of human rights  and basic freedoms ? Many of these unfortunate men and women must not even be remembering when they entered the jail  and for  what offence.  They have  over the  years ceased to  be human  beings they are mere ticket-numbers. It is high  time that the public conscience is awakened and the Government as well as the judiciary begin to realise that in the dark cells of our prisons there are large numbers of men and women  who are  waiting patiently,  impatiently perhaps, but in  vain, for  justice-a commodity  which is  tragically

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

beyond their  reach and  grasp. Law  has become  for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. The time  has come when the legal and judicial system has to be revamped  and restructured so that such injustices do not occur and disfigures the fair and otherwise luminous face of our nascent democracy.      Though we issued notice to the State of Bihar two weeks ago, it is unfortunate that on the 5th February, 1979 no one has appeared  on behalf of the State and we must, therefore, at this  stage proceed  on the  basis that  the  allegations contained in  the issues of the Indian Express dated 8th and 9th  January,  1979  which  are  incorporated  in  the  writ petition are  correct. The  information contained  in  these newspaper cuttings  is most distressing and it is sufficient to stir the consci- 174 ence and  disturb the  equanimity of  any socially motivated lawyer or  judge. Some  of the  undertrial  prisoners  whose names are  given in the newspaper cuttings have been in jail for as  many as 5, 7 or 9 years and a few of them, even more than 10  years, without their trial having begun. What faith can these  lost souls  have in  the  judicial  system  which denies them  a bare  trial for  so many years and keeps them behind bars,  not because  they are guilty, but because they are too  poor to  afford bail and the courts have no time to try them.  It is  a  travesty  of  justice  that  many  poor accused, "little  Indians, are  forced  into  long  cellular servitude for little offences" because the bail procedure is beyond their meagre means and trials don’t commence and even if they  do, they never conclude. There can be little doubt, after the  dynamic interpretation  placed by  this Court  on Art. 21  in Maneka  Gandhi  v.  Union  of  India(1)  that  a procedure which  keeps such  large numbers  of people behind bars without  trial so  long cannot  possibly be regarded as ’reasonable, just  or fair’  so as  to be in conformity with the requirement of that Article. It is necessary, therefore, that  the   law  as   enacted  by  the  Legislature  and  as administered  by   the  courts  must  radically  change  its approach to  pretrial detention and ensure ’reasonable, just and fair’  procedure which  has creative  connotation  after Maneka Gandhi’s case supra.      Now, one  reason why  our  legal  and  judicial  system continually denies  justice to  the poor by keeping them for long   years   in   pretrial   detention   is   our   highly unsatisfactory bail  system.  It  suffers  from  a  property oriented approach  which seems  to proceed  on the erroneous assumption that  risk of monetary loss is the only deterrent against  fleeing   from  justice.   The  Code   of  Criminal Procedure, even  after its  re-enactment, continues to adopt the same  antiquated approach  as the  earlier Code  enacted towards the  end of the last century and where an accused is to be  released on  his personal  bond, it  insists that the bond should  contain a  monetary  obligation  requiring  the accused to  pay a sum of money in case he fails to appear at the  trial.   Moreover,  as  if  this  were  not  sufficient deterrent to  the poor,  the courts  mechanically and  as  a matter of  course insist  that the  accused  should  produce sureties who will stand bail for him and these sureties must again establish  their solvency  to be  able to  pay up  the amount of  the bail  in case  the accused fails to appear to answer the  charge.  This  system  of  bails  operates  very harshly against the poor and it is only the non-poor who are able to  take advantage of it by getting themselves released on bail.  The poor  find it  difficult to  furnish bail even

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

without sureties  because very  often the amount of the bail fixed by the courts is so 175 unrealistically excessive  that in  a majority  of cases the poor are  unable to  satisfy the  police or  the  Magistrate about their  solvency for  the amount  of the bail and where the bail  is with  sureties, as  is  usually  the  case,  it becomes an  almost impossible  task for  the  poor  to  find persons sufficiently  solvent  to  stand  as  sureties.  The result is  that either  they are  fleeced by  the police and revenue officials  or by touts and professional sureties and sometimes they  have even  to incur debts for securing their release or,  being unable  to obtain  release, they  have to remain in  jail until such time as the court is able to take up their  cases for  trial, leading  to grave  consequences, namely, (1)  though presumed innocent, they are subjected to psychological and  physical deprivations  of jail  life, (2) they are  prevented from  contributing to the preparation of their defence and (3) they lose their job, if they have one, and are  deprived of  an  opportunity  to  work  to  support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is hero that the poor find our  legal and  judicial system  oppressive and heavily weighted against  them and  a  feeling  of  frustration  and despair  occurs  upon  them  as  they  find  that  they  are helplessly in  a position  of inequality  with the non-poor. The Legal  Aid Committee  appointed  by  the  Government  of Gujarat under  the chairmanship  of one  of us,  Mr. Justice Bhagwati,  emphasised   this  glaring   inequality  in   the following words:           "The bail system, as we see it administered in the      criminal courts  today, is extremely unsatisfactory and      needs  drastic   change.  In  the  first  place  it  is      virtually  impossible   to  translate   risk  of   non-      appearance by  the accused  into precise monetary terms      and even  its basic premise that risk of financial loss      is necessary  to prevent the accused from fleeing is of      doubtful validity.  There  are  several  considerations      which deter  an accused  from running away from justice      and risk of financial loss is only one of them and that      too not a major one. The experience of enlightened Bail      Projects in  the United  States such  as Manhattan Bail      Project and  D. C. Bail Project shows that even without      monetary bail  it  has  been  possible  to  secure  the      presence of  the accused  at the trial in quite a large      number of  cases.  Moreover,  the  bail  system  causes      discrimination against  the poor  since the  poor would      not be able to furnish bail on account of their poverty      while the wealthier persons otherwise similarly situate      would be  able to secure their freedom because they can      afford to furnish bail. This discrimination arises even      if the amount 176      of the bail is fixed by the Magistrate is not high, for      a large  majority of  those who  are brought before the      Courts in  criminal cases  are so  poor that they would      find it  difficult to  furnish bail  even  in  a  small      amount." The Gujarat  Committee also  pointed out how the practice of fixing the  amount of  bail with  reference to the nature of the charge  without taking  into account  relevant  factors, such  as  the  individual  financial  circumstances  of  the accused and  the probability of his fleeing before trial, is harsh and oppressive and discriminates against the poor:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

         "The discriminatory  nature  of  the  bail  system      becomes all  the more acute by reason of the mechanical      way in  which it  is custormarily  operated. It  is  no      doubt true  that theoretically the Magistrate has broad      discretion in fixing the amount of bail but in practice      it seems  that the amount of bail depends almost always      on  the   seriousness  of  the  offence.  It  is  fixed      according to  a schedule  related to  the nature of the      charge.  Little   weight  is   given  either   to   the      probability that  the  accused  will  attempt  to  flee      before  his   trial  or  to  his  individual  financial      circumstances,  the   very  factors   which  seem  most      relevant if  the purpose  of  bail  is  to  assure  the      appearance of  the accused  at the trial. The result of      ignoring these  factors and  fixing the  amount of bail      mechanically having  regard only  to the seriousness of      the offence is to discriminate against the poor who are      not in  the  same  position  as  the  rich  as  regards      capacity to  furnish bail.  The Courts  by ignoring the      differential capacity  of the  rich  and  the  poor  to      furnish  bail   and  treating   them  equally   produce      inequality between  the rich and the poor: the rich who      is  charged   with  the   same  offence   in  the  same      circumstances is  able to  secure his release while the      poor is  unable to  do so  on account  of his  poverty.      These are  some of the major defects in the bail system      as it is operated to-day." The same  anguish  was  expressed  by  President  Lyndon  B. Johnson at the time of signing the Bail Reforms Act, 1966:           "Today, we  join to  recognize a major development      in our  system of  criminal justice:  the reform of the      bail system.           This  system   has  endured-archaic,   unjust  and      virtually unexamined-since the Judiciary Act of 1789.           The principal purpose of bail is to insure that an      accused person  will return for trial if he is released      after arrest. 177           How is that purpose met under the present system ?      The defendant with means can afford to pay bail. He can      afford to  buy his freedom. But poorer defendant cannot      pay the  price. He languishes in jail weeks, months and      perhaps even years before trial.           He does  not stay in jail because he is guilty. He      does not  stay in  jail because  any sentence  has been      passed.           He does  not stay  in jail  because he is any more      likely to flee before trial.           He stays in jail for one reason only-because he is      poor....." The bail  system, as it operates today, is a source of great hardship to  the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to  the  poor  in  the  administration  of  justice,  it  is imperative  that   the  bail  system  should  be  thoroughly reformed so  that it  should be  possible for  the poor,  as easily as  the  rich  to  obtain  pretrial  release  without jeopardizing the interest of justice.      It is  high time that our Parliament realises that risk of monetary  loss is  not the only deterrent against fleeing from justice,  but there are also other factors which act as equal  deterrents  against  fleeing.  Ours  is  a  socialist republic with  social justice  as the  signature tune of our constitution  and  Parliament  would  do  well  to  consider whether it would not be more consonant with the ethos of our

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

constitution that  instead of  risk of financial loss, other relevant considerations  such as  family ties,  roots in the community, job  security, membership of stable organisations etc., should  be the  determinative factors in grant of bail and the  accused should  be in appropriate cases be released on his personal bond without monetary obligation. Of course, it may  be necessary  in  such  a  case  to  provide  by  an amendment of  the penal  law that  if the  accused  wilfully fails to  appear in compliance with the promise contained in his personal  bond, he  shall be liable to penal action. But even under  the law  as it  stands  today  the  courts  must abandon the  antiquated concept under which pretrial release is ordered  only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good.  The new  insight into  the subject  of  pretrial release  which  has  been  developed  in  socially  advanced countries and  particularly the  United  States  should  now inform the  decisions of  our Courts  in regard  to pretrial release. If  the  Court  is  satisfied,  after  taking  into account, on  the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused 178 on his  personal bond.  To determine whether the accused has his roots  in the  community  which  would  deter  him  from fleeing, the  Court should  take into  account the following factors concerning the accused:      1.   The length of his residence in the community.      2.   his employment  status, history  and his financial           condition,      3.   his family ties and relationships,      4.   his reputation, character and monetary condition,      5.   his prior  criminal record including any record or           prior release on recognizance or on bail,      6.   the  identity   of  responsible   members  of  the           community who would vouch for his reliability.      7.   the nature of the offence charged and the apparent           probability of  conviction and the likely sentence           in so  far as  these factors  are relevant  to the           risk of non appearance, and      8.   any other  factors  indicating  the  ties  of  the           accused to the community or bearing on the risk of           wilful failure to appear. If the court is satisfied on a consideration of the relevant factors that  the accused  has his ties in the community and there is  no substantial risk of non-appearance, the accused may, as  far as  possible, be released on his personal bond. Of course,  if facts  are brought to the notice of the court which go  to show  that having  regard to  the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of  his non-appearance  at the  trial, as  for example, where  the  accused  is  a  notorious  bad  character  or  a confirmed criminal or the offence is serious (these examples are only  by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But  in the majority of cases, considerations like family  ties  and  relationship,  roots  in  the  community, employment  status  etc.  may  prevail  with  the  court  in releasing the  accused on his personal bond and particularly in cases  where the  offence is not grave and the accused is poor or  belongs to  a  weaker  section  of  the  community, release on  personal bond  could, as  far  as  possible,  be preferred. But  even while releasing the accused on personal bond it is necessary to caution the court that the amount of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

the bond which it 179 fixes should  not be  based merely  on  the  nature  of  the charge. The  decision as  regards the  amount  of  the  bond should  be  an  individualised  decision  depending  on  the individual financial  circumstances of  the accused  and the probability of his absconding. The amount of the bond should be determined  having regard  to these  relevant factors and should not  be fixed  mechanically according  to a  schedule keyed to  the nature  of the  charge. Otherwise, it would be difficult for  the accused  to secure  his release  even  by executing a  personal bond.  Moreover, when  the accused  is released on  his personal  bond, it  would be very harsh and oppressive if  he is  required to satisfy the court-and what we have  said here in regard to the court must apply equally in relation  to the  police while  granting bail-that  he is solvent enough  to pay the amount of the bond if he fails to appear  at   the  trial  and  in  consequence  the  bond  is forfeited. The  inquiry into the solvency of the accused can become a  source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be  insisted upon as a condition of acceptance of the personal  bond. We  have no  doubt that if the system of bail, even  under the  existing law,  is administered in the manner we  have indicated  in this  judgment, it  would go a long way  towards relieving  hardship of  the poor  and help them to  secure pretrial  release from  incarceration. It is for this  reason we  have directed  the undertrial prisoners whose names  are given  in the  two  issues  of  the  Indian Express should be released forthwith on their personal bond. We should  have ordinarily  said that  personal bond  to  be executed by  them should be with monetary obligation, but we directed as  an exceptional  measure that  there need  be no monetary obligation  in the  personal bond  because we found that all  these persons  have been in-jail without trial for several years,  and in some cases for offences for which the punishment would  in all probability be less than the period of their  detention and  moreover, the  order we were making was  merely   an  interim  order.  The  peculiar  facts  and circumstances of the case dictated such an unusual course.      There is  also one  other infirmity  of the  legal  and judicial system  which is  responsible for this gross denial of justice  to the  undertrial prisoners  and  that  is  the notorious delay in disposal of cases. It is a bad reflection on the  legal and  judicial system  that  the  trial  of  an accused should not even commence for a long number of years. 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 180 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

it is  implicit in the broad sweep and content of Article 21 as interpreted  by this  Court in  Maneka Gandhi v. Union of India. 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 reasonable 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. The  question which  would, however, arise is as to what would be  the consequence  if a person accused of an offence is denied  speedy trial  and is sought to be deprived of his liberty by  imprisonment as a result of a long delayed trial in violation  of his  fundamental right  under  Article  21. Would he  be entitled  to be  released unconditionally freed from the  charge levelled  against him  on the  ground  that trying  him   after  an  unduly  long  period  of  time  and convicting him  after such  trial would constitute violation of his  fundamental right  under Article  21  ?  That  is  a question we  shall have  to consider  when we  hear the writ petition on  merits on  the adjourned date. But one thing is certain and  we cannot  impress it too strongly on the State Government that  it is  high time  that the State Government realised its  responsibility to  the people in the matter of admini- 181 stration of  justice and set up more courts for the trial of cases. We  may point  out that it would not be enough merely to establish more courts but the State Government would also have to  man  them  by  competent  judges  and  whatever  is necessary for  the purpose  of recruiting  competent judges, such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for  reaching justice  to  the  large  masses  of people for  whom justice  is to-day  a meaningless and empty word.      These are the reasons for which we made our order dated 5th February,  1979. We  shall now  proceed to hear the writ petition on 19th February, 1979.      PATHAK, J.-It  is indisputable  that  an  unnecessarily prolonged detention  in prison  of undertrials  before being brought to  trial is  an affront  to all  civilized norms of human liberty.  Any meaningful concept of individual liberty which forms  the bedrock  of a  civilized legal  system must view with  distress patently  long periods  of  imprisonment before persons  awaiting trial  can receive the attention of the administration  of justice.  The  primary  principle  of criminal law  is that  imprisonment may follow a judgment of guilt. But  should not  precede it.  But  there  is  another principle which  makes  it  desirable  to  ensure  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

accused is  present to  receive his sentence in the event of being found  guilty. Now,  the Code  of Criminal  Procedure, both the  old Code  and the  new, include  provision for the release of  a person  on bail  or on the execution of a bond without sureties for his appearance. Nonetheless, as appears prima facie  from the  record before  us, a  large number of persons whose  names, find  mention in  copies of the Indian Express of  January 8  and 9,  1979, have been in prison for long year  without even  being brought  to  trial.  Although sufficient opportunity  was given  to the  State of Bihar to meet the allegations made, it is unfortunate that no one has appeared on  behalf of  the State. In view of the importance of the  questions arising  on the habeas corpus petition, we have provided further opportunity to the State to appear and accordingly have  posted the  petition for  final hearing on February 19, 1979. But at the same time we see no reason why interim relief  should be denied to these undertrials. After carefully considering  what has been said in respect of each individual undertrial, we have considered it appropriate, in the interests  of justice,  to make the order of February 5, 1979 directing  the release of the persons mentioned in that order on  their executing  a personal  bond.  The  order  is somewhat unusual  in that  it directs that the personal bond to be taken in each 182 case should  not be  based on  any monetary  obligation. The condition has been included as an exceptional measure, under the  persuasive   pressure  of   the  particular  facts  and circumstance of the case.      In regard  to the  exercise of  the judicial  power  to release  a  prisoner  awaiting  trial  on  bail  or  on  the execution of  a  personal  bond  without  sureties  for  his appearance,  I  have  to  say  this  briefly.  There  is  an amplitude of  power  in  this  regard  within  the  existing provisions of  the Code of Criminal Procedure, and it is for the Courts  to fully acquaint themselves with the nature and extent of  their discretion  in exercising it. I think it is no longer  possible to  countenance a mechanical exercise of the power. What should be the amount of security required or the monetary  obligation demanded  in a  bond  is  a  matter calling for  the careful  consideration of  several factors. The entire  object being  only to ensure that the undertrial does not  flee or  hide himself from trial, all the relevant considerations which  enter into  the determination  of that question must  be taken  into account. A synoptic impression of what  the considerations  could be  may be drawn from the following provision  in the United States Bail Reform Act of 1966:           "In determining  which conditions of releases will      reasonably  assure  appearance,  the  judicial  officer      shall, on the basis of available information, take into      account the  nature and  circumstances of  the  offence      charged,  the   weight  of  the  evidence  against  the      accused,  the   accused’s  family   ties,   employment,      financial resources,  character and  mental  condition,      the length  of his  residence  in  the  community,  his      record of  convictions, and his record of appearance at      court proceedings  or of flight to avoid prosecution or      failure to appear at court proceedings. These are  considerations which  should be kept in mind when determining  the   amount  of   the  security   or  monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing  system of pretrial release in India could be avoided or,  in any  event, greatly reduced See Moti Ram and Others v. State of Madhya Pradesh.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

    I consider  it desirable  to refrain  from  making  any final comment  or observation  on the legality and propriety of the  continued  detention  of  the  undertrial  prisoners whether on the ground of infringement 183 of Article 21 of the Constitution or on other grounds. That, I think,  should await the final determination of the habeas corpus petition.      These are  the reasons  which  have  influenced  me  in making the order dated February 5, 1979.      While concluding,  it seems desirable to draw attention to the  absence of  an explicit  provision in  the  Code  of Criminal Procedure  enabling  the  release,  in  appropriate cases,  of  an  undertrial  prisoner  on  his  bond  without sureties and  without  any  monetary  obligation.  There  is urgent need for a clear provision. Undeniably, the thousands of undertrial  prisoners  lodged  in  Indian  prisons  today include many  who are  unable to secure their release before trial because  of  their  inability  to  produce  sufficient financial guarantee  for their appearance. Where that is the only reason  for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so  under a constitutional system which promises social equality and  social justice  to all  of its  citizens.  The deprivation of  liberty for  the reason of financial poverty only is  an incongruous element in a society aspiring to the achievement of  these constitutional  objectives. There  are sufficient  guarantees   for  appearance   in  the  host  of considerations to which reference has been made earlier and, it seems  to me, our law-makers would take an important step in defence  of individual  liberty if  appropriate provision was made in the statute for non-financial releases. N.V.K. 184