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Article 21 in The Constitution Of India 1949
The Constitution Of India 1949
The Children Act, 1960
Hussainara Khatton & Ors vs Home Secretary, State Of Bihar, ... on 26 February, 1979
Firm Surajmal Banshidhar, Etc vs The Municipal Board, Ganganagar on 25 October, 1978
Citedby 82 docs - [View All]
State Of West Bengal vs Union Of India And Others on 21 March, 1995
Anurag Baitha vs State Of Bihar on 4 February, 1987
C.K. Rajan vs State Of Kerala And Ors. on 10 January, 1994
Kamil vs State Of U.P. on 1 October, 1992
K. Manoharan vs Dig Of Police, Special Task Force ... on 11 March, 1994

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Supreme Court of India
Sheela Barse & Ors vs Union Of India & Ors on 13 August, 1986
Equivalent citations: JT 1986 136, 1986 SCALE (2)230
Author: P Bhagwati
Bench: Bhagwati, P.N. (Cj)
           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
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 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 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 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 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