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PETITIONER: SHEELA BARSE & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT13/08/1986

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) MISRA RANGNATH

CITATION:  JT 1986   136            1986 SCALE  (2)230

ACT:      Constitution of  India, 1950,  Article 21-Speedy trial- Whether fundamental right of accused.      Children Act,  1960 Children-offences by-Not to be kept in Jail-To be kept in remand homes or released on bail.      Criminal Trial-Investigation  of offences  by children- Completion within  three months  of lodging complaint / FlR- Trial-Completion within six months-Necessity of.

HEADNOTE:      On 12th July, 1986 this Court issued various directions in regard  to the  physically and mentally retarded children as also  abandoned or  destitute children  who are lodged in various jails in the country for ’safe custody’.      Giving further directions,      HELD: 1.  The right  to speedy  trial is  a fundamental right implicit in Art. 21 of the Constitution. If an accused is not  tried speedily  and his  case remains pending before the Magistrate  or the  Sessions Court  for an  unreasonable length of  time, it  is clear  that his fundamental right to speedy trial  would be violated unless, of course, the trial is held  up on  account of  some interim  order passed  by a superior court  or the  accused is responsible for the delay in the  trial of  the case.  The consequence of violation of the fundamental  right to  speedy trial  would be  that  the prosecution itself  would be  liable to  be quashed  on  the ground that it is in breach of the fundamental right. [566E- G]      Hussainara Khatoon  & Ors.  v. Home Secretary, State of Bihar, [ 1979] SCR 169, relied upon      2. Every  State Government must take necessary measures for the 563 purpose of  setting up adequate number of courts, appointing requisite number  of Judges and providing them the necessary facilities. It  is also  necessary to set up an Institute or Academy for  training of  judicial officers  so  that  their efficiency may  be improved and they may be able to regulate and control  the flow  of cases  in their respective courts. [567B-C]      3. So  far as  a child-accused of an offence punishable with imprisonment  of not  more than 7 years is concerned, a period of  3 months from the date of filing of the complaint

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or lodging  of the  First Information  Report is the maximum time permissible  for investigation and a period of 6 months from the  filing of  the charge sheet as a reasonable period within which  the trial  of the  child must be completed. If that is not done, the prosecution against the child would be liable to  be quashed.  Every State  Government  shall  give effect to  this principle  or norm  in so  far as any future cases are concerned. [567E-F]      4.  So  far  as  concerns  pending  cases  relating  to offences punishable  with imprisonment  of not  more than  7 years, it  is directed  that every  State  Government  shall complete the  investigation within a period of 3 months from today if  the investigation  has  not  already  resulted  in filing of  chargesheet and  if a chargesheet has been filed, the trial  shall be  completed within  a period  of 6 months from today  and if  it is  not,  the  prosecution  shall  be quashed. [567F-G]      5. The  State Governments  must set up necessary remand homes and  observation homes  where children  accused of  an offence can be lodged pending investigation and trial. On no account should  the children  be kept in jail and if a State Government has  not  got  sufficient  accommodation  in  its remand homes  or observation  homes, the  children should be released on bail instead of being subjected to incarceration in jail. [565D-E]      6. Instead  of each State having its own Children’s Act different in  procedure and  content from the Children’s Act in other  States, the  Central  Government  should  initiate Parliamentary Legislation  on the  subject, so that there is complete uniformity  in regard  to  the  various  provisions relating to children in the entire territory of the country. The Children’s Act which may be enacted by Parliament should contain not  only provisions  for investigation and trial of offences against  children below  the age  of 16  years  but should  also   contain  mandatory  provisions  for  ensuring social, economic  and psychological  rehabilitation  of  the children who are either accused of offences or are abandoned or destitute or lost. [568A-G] 564

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Criminal) No.1451 of 1985      Under Article 32 of the Constitution of India.      Petitioner-in-person.      Harbans Lal.  Tapas Ray,  D.K. Sinha,  J.R. Das, Girish Chander, Ms.  Subhashini, Pramod Swarup, D. Bhandari, C.V.S. Rao, B.D. Sharma, D.N. Mukherjee, R. Mukherjee, A.V. Rangam. T.V. Ratnam, S.B.  Bhasme, A.S.  Bhasme and  A.M. Khanwilkar for the Respondents.      The order of the Court was delivered by      MISRA J.  We made  an Order  on 12th July, 1986 issuing various directions  in regard  to  physically  and  mentally retarded children  as also  abandoned or  destitute children who are  lodged in  various jails  in the  country for ’safe custody’.  We   also  directed   the  Director   General  of Doordarshan as  also the Director General of All India Radio to give  publicity seeking  cooperation of  non-governmental social service  organisations in  the task of rehabilitation of these  children. We  were extremely  pained and anguished that these  children should be kept in jail instead of being properly looked  after, given adequate medical treatment and imparted training  in various  skills which  would make them

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independent and  self-reliant. Some  years ago  we came  out with a  National Policy  for the  Welfare of  Children which contained the following preambulatory declaration:           "The nation’s  children are  a supremely important           asset.   Their  nurture  and  solicitude  are  our           responsibility. Children’s programme should find a           prominent part  in  our  national  plans  for  the           development  of   human  resources,  so  that  our           children grow up to become robust citizens, physi-           cally fit,  mentally alert  and  morally  healthy,           endowed with  the skill  and motivations needed by           society. Equal  opportunities for  development  to           all children during the period of growth should be           our aim, for this would serve our large purpose of           reducing inequality and ensuring social justice." If a  child is a national asset, it is the duty of the State to look  after the  child  with  a  view  to  ensuring  full development of its personality. That 565 is why  all the  statutes dealing with children provide that child shall  not be  kept in  jail.  Even  apart  from  this statutory prescription,  it is  elementary that  a  jail  is hardly a place where a child should be kept. There can be no doubt that  incarceration in  jail would  have the effect of dwarfing the  development of  the  child,  exposing  him  to baneful influences, coarsening his conscience and alienating him from  the society. It is a matter of regret that despite statutory provisions  and frequent  exhortations  by  social scientists, there  are still  a large  number of children in different jails  in the  country as  is now evident from the reports of  the survey  made by the District Judges pursuant to our order dated 15th April, 1986. Even where children are accused of  offences, they  must not be kept in jails. It is no answer  on the  part of  the State to say that it has not got enough  number of  remand homes  or observation homes or other places where children can be kept and that is why they are lodged in jails. It is also no answer on the part of the State to  urge that  the ward in the jail where the children are kept  in separate  from the  ward  in  which  the  other prisoners are  detained. It  is the  atmosphere of  the jail which has  a highly  injurious effect  on the  mind  of  the child, estranging  him from  the society and breeding in him aversion bordering  on hatred  against a  system which keeps him in  jail. We  would therefore like once again to impress upon the  State Governments  that they must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial. On no account  should the  children be  kept in  jail and  if a State Government has not got sufficient accommodation in the remand homes  or observation  homes, the  children should be released on bail instead of being subjected to incarceration in jail.      The problem  of detention  of children  accused  of  an offence would  become much  more easy  of  solution  if  the investigation in  the police and the trial by the Magistrate could be  expedited. The  reports of survey made by District Judges show  that in  some places children have been in jail for quite  long periods.  We fail  to see  why investigation into offences  alleged to  have been  committed by  children cannot be  completed quickly  and equally  why can the trial not take  place within a reasonable time after the filing of the charge-sheet.  Really speaking,  the trial  of  children must take  place in  the Juvenile  Courts  and  not  in  the regular  criminal   courts.  There  are  special  provisions enacted in  various statutes  relating to children providing

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for trial  by Juvenile  Courts in  accordance with a special procedure intended  to safeguard the interest and welfare of children, but,  we find that in many of the States there are no Juvenile Courts functioning at all and 566 even where there are Juvenile Courts, they are nothing but a replica of  the ordinary  criminal courts,  only  the  label being changed.  The same Magistrate who sits in the ordinary criminal court  goes and  sits in  the  Juvenile  Court  and mechanically tries  cases against children. It is absolutely essential, and  this is  something which  we wish to impress upon the  State Governments  with all the earnestness at our command, that  they must set up Juvenile Courts, one in each district, and there must be special cadre of Magistrates who must be  suitably trained  for dealing  with  cases  against children. They  may also do other criminal work, if the work of the  Juvenile Court  is not  sufficient  to  engage  then fully, but  they must  have proper and adequate training for dealing with  cases against  Juveniles, because  these cases require a  different type  of procedure  and qualitatively a different kind of approach.      We would also direct that where a complaint is filed or first information report is lodged against a child below the age of  16 years for an offence punishable with imprisonment of not  more  than  7  years,  the  investigation  shall  be completed within  a period  of three months from the date of filing of  the complaint or lodging of the First Information Report and if the investigation is not completed within this time, the  case against the child must be treated as closed. If within three months, the chargesheet is filed against the child in  case of an offence punishable with imprisonment of not more  than 7  years, the case must be tried and disposed of within  a further  period of  6 months at the outside and this period  should be  inclusive of  the time  taken up  in committal proceedings,  if any.  We  have  already  held  in Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, [1979] 3  SCR 169  that the  right  to  speedy  trial  is  a fundamental right  implicit in  Art. 21 of the Constitution. If an  accused is  not tried  speedily and  his case remains pending before  the Magistrate  or the Sessions Court for an unreasonable  length   of  time,   it  is   clear  that  his fundamental right  to speedy trial would be violated unless, of course,  the trial  is held up on account of some interim order  passed   by  a  superior  court  or  the  accused  is responsible for  the delay  in the  trial of  the case.  The consequence of  violation of the fundamental right to speedy trial would  be that  the prosecution itself would be liable to be  quashed on  the ground  that it  is in  breach of the fundamental right.  One of  the primary reasons why trial of criminal cases  is delayed  in the courts of Magistrates and Additional Sessions Judges is the total inadequacy of judge- strength and  lack of  satisfactory working  conditions  for Magistrates and Additional Sessions Judges. There are courts of Magistrates  and Additional  Sessions  Judges  where  the workload is so heavy that it is just not 567 possible to cope with the workload, unless there is increase in the  strength  of  Magistrates  and  Additional  Sessions Judges.  There   are   instances   where   appointments   of Magistrates and  Additional Sessions  Judges are held up for years and the courts have to work with depleted strength and this affects speedy trial of criminal cases. The Magistrates and  Additional  Sessions  Judges  are  often  not  provided adequate staff and other facilities which would help improve their disposal of cases. We are,  therefore, firmly  of  the

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view  that   every  State  Government  must  take  necessary measures for  the purpose  of setting  up adequate number of courts, appointing  requisite number of Judges and providing them the  necessary facilities.  It is also necessary to set up an Institute or Academy for training of Judicial officers so that  their efficiency  may be  improved and  they may be able to  regulate and  control the  flow of  cases in  their respective courts.  The problem of arrears of criminal cases in the  courts of Magistrates and Additional Sessions Judges has assumed rather disturbing proportions and it is a matter of grave  urgency to which no State Government can afford to be oblivious.  But, here,  we are  not  concerned  with  the question of  speedy trial  for an accused who is not a child below the age of 16 years. That is a question which may have to be  considered in some other case where this Court may be called upon  to examine  as to  what is reasonable length of time for trial beyond which the court would regard the right to speedy trial as violated. So far as a child-accused of an offence punishable  with imprisonment  of not  more  than  7 years is  concerned, we  would regard  a period  of 3 months from the  date of  filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and  a period  of 6  months from the filing of the charge  sheet as  a reasonable  period within  which the trial of  the child  must be completed. If that is not done, the prosecution  against the  child would  be liable  to  be quashed. We  would direct  every State  Government  to  give effect to  this principle  or norm laid down by us in so far as any  future cases  are concerned,  but so far as concerns pending  cases   relating  to   offences   punishable   with imprisonment of not more than 7 years, we would direct every State Government  to complete  the  investigation  within  a period of  3 months  from today if the investigation has not already  resulted   in  filing   of  chargesheet  and  if  a chargesheet has  been filed,  the trial  shall be  completed within a period of 6 months from today and if it is not, the prosecution shall be quashed.      We have  by our order dated 5th August 1986 called upon the State  Government to  bring into  force and to implement vigorously the 568 provisions of  the Children’s  Acts enacted  in the  various States. But  we would  suggest that  instead of  each  State having its  own Children’s  Act in other States. it would be desirable if  the Central Government initiates Parliamentary Legislation on  the  subject,  so  that  there  is  complete uniformity in  regard to  the various provisions relating to children  in  the  entire  territory  of  the  country.  The Children’s Act  which may  be enacted  by Parliament  should contain not  only provisions  for investigation and trial of offences against  children below  the age  of 16  years  but should  also   contain  mandatory  provisions  for  ensuring social, economic  and psychological  rehabilitation  of  the children who are either accused of offences or are abandoned or destitute  or lost.  Moreover, it is not enough merely to have legislation  on the  subject, but it is equally, if not more,  important   to  ensure   that  such   legislation  is implemented in  all earnestness and mere lip sympathy is not paid  such   legislation  and   justification  .   for  non- implementation is  not pleaded on ground of lack of finances on the  part of the State. The greatest recompense which the State can get for expenditure on children is the building up of a  powerful human resource ready to take its place in the forward march of the nation.      We have  already given various directions by our orders

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dated 12th  July 1986  and 5th  August 1986. We have also in the meantime  received reports  of survey  made  by  several District  Judges.   We  shall  take  up  these  matters  for consideration at the next hearing of the writ petition which shall take place on 1.9.1986. A.P.J. 569