SHAHEEN WELFARE ASSOCIATION versus UNION OF INDIA AND OTHERS

SHAHEEN WELFARE ASSOCIATION v.

UNION OF INDIA AND OTHERS

FEBRUARY 27, 1996

[A.M. AHMADI, CJ. AND SUJATA V. MANOHAR, J.]

Terrorist and Disntptive Activities (Prevention) Act, 1987 : S.20(8). Trial-Designated Cowt~~Jnadequate number of-Unde1trials languishing in jails-Undertrials divided into different categories-Release on bail-Guidelines for -Laid down.

Under the terrorist and Disruptive Activities (Prevention) Act, 1987, Designated Courts were set up. However, in some State the existing Session Court were also designated as Courts under TADA, with the result that these Courts did not deal exclusively with the trial of TADA cases. These Courts also dealt with other criminal cases, and so the entire time of such Court was not available for the trial of TADA cases. Thus in many States there was no prospect of speedy trial of pending TADA cases.

In this public interest litigation petition, direction is sought for the release of TADA detenus against whom proper evidence was not available with the prosecution, and where proper procedure prescribed under law was not followed.

Disposing of the petition, this Court

HELD : 1.1. There is very little prospect of speedy trial of cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 in some State because of the absence of an adequate number of Designated Courts even in cases where chargesheet has been filed and the cases are ready for trial. Even the trial of ordinary criminal cases does take time time because of the Courts being overloaded with work and the concept of 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 reasonable time. Where this is not practical, release on bail which can be taken to be embedded in the 1123

right of speedy trial may, in some cases, be necessary to meet the requirement of Article 21. (1129-C-E]

Ka1tar Singh v. State of Punjab, (1994] 3 SCC 599, referred to.

1.2. It has become necessary to grant some relief to those persons who have been deprived of their personal liberty for 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 under trials have been charged with. But the ultimate justification for such deprivation [of liberty pending trial can only be ][on ][their ][being found guilty of the ]offences for which they have been charged. (1130-B-C]

1.3. The conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities have to be reconciled. While it is essential that in-D nocent 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 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 per-sons who have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for long time pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined. (1130-D-F]

Supreme Cowt Legal Aid Committee Representing Unde1tlial Plisoners v. Union of India & Ors., (1994) 6 SCC 731, referred to.

1.4. 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 bail. Such stringent provisions can be justified looking to the nature of the crime, 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 ~o . possible situations that may justify invocation of Article 21.

[1130-G-H; 1131-A]

Kartar Singh v. State of Punjab, [1994] 3 SCC 569, referred to.

2.1. For the propose of grant of bail to TADA detenus, the under-trials are divided into three classes, namely, (a) hardcore undertrials whose release would prejudice the prosecution case and whose liberty may prove to be menace to society in general and to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts or involvement directly attract Section 3 and/or 4 of TADA (c) undertrials who are roped in, not because of any activity directly attracting Sections 3 and 4, but by virtue of Sections 1208 or 147 I.P.C.; and (d) those under-trials who were found possessing incriminating articles in notified areas and are booked under Section 5 of TADA. [1131-G-H; 1132-A]

2.2. Undertrials falling within group (a) cannot receive liberal treat-ment. Cases of undertrials falling in group (b) would have to be differently dealt with, 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 he released if they have been in jail 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 bond for Rs. 30,000 with one surety for like amount. The above directions are onetime measures meant only to alleviate the current situa-tion. [1132-B-D; 1133-D]

3. When stringent provisions have been prescribed under an Act such as TADA for grant of bail and 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 crime is done efficiently and an adequate number of Designated Courts are set up to bring to book 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 periods. [1133-E-F]

[1996] 2 S.C.R.

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 117of1995.

(Under Article 32 of the Constitution of India.)

K.T.S. Tulsi, Additional Solicitor General, S.K. Dholakia, M.M. Kashyap, (S.A. Chitale) for Ms. H. Wahi, Aruneshwar Gupta, S.M. Jadhav, D.M. Nargolkar, P. Parmeswaran, T.C. Sharma and Anil K. Gupta for the appearing parties.

The Judgment of the Court was delivered by

MRS. SUJATA V. MANOHAR, J. : This is 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 direction that the respondents should file list of detenus lodged in jails in different States under TADA and has asked for direction for . the release of TADA detenus 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 vari~us 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 f...K. Shrivastava, Deputy Secretary to the Government of India, Ministry of Home Affairs, New Delhi, state-G ment is annexed showing live cases under TADA and the number of Designated Courts in different States and Union Territodes. The statement is as follows :

SHAHEENWELFAREASSN.v. U.0.1. [MRS.SUJATA V.MANOHAR,J.J 1127

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 Jummu & 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 Court is also somewhat deceptive in the sense that in some Sates 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. There-fore, 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 speedy trial of pending TADA cases. statement which is annexed to an earlier affidavit filed on behalf of the Union of India by Shri R.S. Tanwar, Under

(1996] 2 S.C.R.'

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 5998. 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 ]reviewed 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 discharge form TADA provisions are 7968.

The National Human Rights Commission has also furnished state-ment showing the position of TADA detenus in jail as on 30.6.1995. While the Statewise figures given by it do not 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 detenus 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 citizen must be zealously safeguarded by the courts, nonetheless the courts while dis-pensing justice in cases like the one under TADA 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 warrant 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 Centre to ensure that the provisions of TADA were correctly invoJ<.ed in the cases pendit!g

before the Designated Courts. The purpose of constituting such commit-A tees was to ensure 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 single case filed by C.B.I. has been so reviewed although the Review Committee, it is said, has examined all the cases. more independent and objective scrutiny of these cases by Committee headed by 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 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 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 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 reasonable time. Where this is not practical, release on bail which can be taken to be embedded in the right of 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 Cowt legal Aid p Committee Representing Unde1trial 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 situatiom 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 depriva-tion pending trial becomes unduly long, the fairness assured by Article 21 would receive jolt. It is because of this that we have felt that after the

(1996] 2 S.C.R.

accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised 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 considerable length of time without any prospect of the trial being con-cluded 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 on their being found guilty. of the offences for which they have been charged. If such finding is not likely to be arrived at within 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 speedy trial and punishment. The conflict is generated on account for 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 long period pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may by ruined.

Bearing in mind the nature of the crime and the need to protect the society atid 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 under delay. No one can justify gross delay in disposal of cases

SHAHEENWELFAREASSN.v. U.O.I.[MRS.SUJATAV.MANOHAR,J.j 1131

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 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 concerned 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 priority basis. That would help ensure that the evidence against them does not fade away on account of delay . .qefaY,may otherwise harm the prosecu-tion case and the harsh bail provisi~may prove counter-productive. 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 trial. Even in cases where large number of persons are tied up with the aid of Sections 1208 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 detenus 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 detenus, we divide that undertrials into three classes, namely, (a) hardcore undertrials ~hose release would prejudice the prosecution case and whose liberty may prove to be menace to society in general and to the complainant and prosecu-G tion 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 ac:~ivity directly attracting Section 3 and 4, but by virtue of Section 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 pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of 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 with, in that, if they have been in prison for five years of 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 com-plainant, 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 jail 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 bond for Rs. 30,000 with one surety for like amount, subject to the following terms :

(1) the accused shall report to the concerned police station once 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 Desig-nated Court. If he does not hold 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 necessary;

( 4) The Designated Court will be at liberty to cancel the bail if any of these conditions is violated or case for cancellation of bail is .otherwise made out.

(5) Before granting bail, notice shall be given to the public

SHAHEENWELFAREASSN.v. U.0.1.(MRS.SUJATAV.MANOHAR,J.) 1133

prosecutor and an opportunity shall be given to him to oppose the application for 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, or special reason 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 Blast Bomb Case where lengthy trial is inevitable looking to the number of accused, the number of witness 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 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 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 book 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 period. 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 other as one-time measure.

With the above directions, the writ petition is disposed of.