AMITY LAW SCHOOL NOIDA

AMITY UNIVERSITY, UTTAR PRADESH

LEGAL WRITING

SUBMITTED TO: SUBMITTED BY:

MR. TUSHAR VED SAXENA KRITIKA KAPOOR

A11911113220

SECTION-D

SEMESTER-9

TOPIC: SPEEDY TRIAL IN CRIMES AGAINST

WOMEN

Justice Delayed is Justice Denied

The title of this piece intentionally draws upon the famous phrase & here specific focus is on
procedural rules and norms and how the absence of these can lead to a systematic denial in
justice.This gains importance when in India at present, there are nearly 16,625 judges,
including 16,000 in trial courts (598 in high court & 26 in supreme court) who are dealing
with a pendency of 3 crore cases.

ABSTRACT

The sudden increase in crime against women in India is a matter of concern. The most of the
crimes against women are registered either under section 354 and/or section 376 of Indian
Penal Code. Incident of rape and murder of Nirbhaya in Delhi has raised unprecedented
public outcry resulting suitable changes in Indian Penal Code. The tightening of Juvenile
Justice Act and Indian Penal Code was done and more Fast Tract Courts were set up for
speedy trial of crimes against women. There were registered only 28,568 cases of rape 2014
and 34,651 case were reported in 2015.1 There was rapid increase in 2016 resulting 36,525
rape case reported against the offence. Slow trials of cases are the matter of concern and the
same is caused due to unwarranted plea of adjournments. Speedy trial is the legal right of
both accused and the victim. No procedure which does not ensure a reasonably quick trial can
be regarded as reasonable fair and just and it would be foul to Article 21 of Constitution.
Speedy Trial is prescribed under the Criminal Procedure Code also. A large number of cases
of rape and molestation are unreported because the women victims of offences are reluctant
to lodge complaint as they fear disputation and in many cases police refuse to register the
Fir2. The Trial Court and prosecution must ensure speedy trial because inordinate delay in
trial provides undue advantage to the accused and an inordinate delayed trial may even be
even quashed.

INTRODUCTION:

The increase in crime against women is nowadays a matter of concern for all. The problem
has been discussed everywhere Parliament, State Assemblies, Public Forums, Universities &
Colleges etc. yet there is no nearer solution3. The opinion of people on the point of reason of
crimes against women and solution sharply differs from man to man. Some people demand
more and more stringent provisions of law and some other demands speedy trial of cases as
measure of solution. There was an unprecedented public outcry over the Nirbhaya case and as
result a new more stringent law came into force. The tightening of Juvenile Justice Act and
setting up of fast-tract courts for trial of cases of sexual offences against women were done.

1http://www.allresearchjournal.com/archives/2015/vol1issue7/PartI/1-6-63.pdf [Crime
against women in India: A socio-legal overview ]
2Sharma BS. Fire Arma in criminal Investigation & Trial [New Delhi; Universal Law
Publication], 2011.
3
IJAR 2015; 1(7): 529-531 www.allresearchjournal.com

While on paper landmark legal reforms have been brought into existence, many challenges
have developed in the way of enforcing them. The brutal murder and gang rape of Nirbhaya
exposed policing in the capital Delhi like never before triggering a scientific investigation
was made to ensure the accused booked before the court. The Nirbhaya case also saw
decisive judicial intervention on two fronts- a speedy trial of Nirbhaya case and constant
monitoring to improve safety of women in capital. Soon after the incident, the Delhi High
Court set up fast-track courts, one of which tried the Nirbhaya case. The trial itself saw a
change of trend in police banking heavily on forensic evidences, junking the usual reliance on
eyewitness testimony. These preparedness has, however, hardly and positive effect on the rate
of crime against women. There were 612 cases of molestation registered in the year 2012,
3347 cases in 2013 and there in now unprecedented increase and altogether 3932 case have
been reported in 2014 so far .4 There were 630 case of rape complaint reported to police in
the year 2012 and 1559 cases were reported in the year 2013 and now it has increased upto
1925 in the year 20145 . According to the information available in government records, over
33700 Firs were filed for rape in 2013 and in 95.4% case charge- sheet were filed by policed.
But conviction rate in as low as 27% only6. Usually the crime against women are registered
under section 354 (outraging modesty of women) and/or under section 376 (Rape) of Indian
Penal Code.

PROBLEMS:

Indeed, history is nothing more than a tableau of Crimes and misfortunes Voltaire

1. Judicial delays in India are endemic. No person can hope to get justice in a fairly
reasonable period. Proceedings in criminal cases go on for years, sometimes decades. Civil
cases are delayed even longer.

4 The times of India; Dec. 17, 2104

5
ibid
6
ibid
2. The administration of justice does not deal with the punishment of the guilty alone; it also
means acquittal of the innocent. Fairness and speed are equally important in the
administration of justice7 . Delay in trial leads to frustration & creates a benchmark for others
to not to get involved in any litigation. It inversely impacts the Indian judicial system.

3. Court system delay which accounts for the period of entering the cause till its taken up for
trial.

4. Delay due to professional courtesy of lawyers towards each other and lawyers vis--vis
the court.

5. The functioning of the judiciary is independent in nature but it doesnt mean it is not
accountable to anyone8. Considering this factor it can be concluded that it drives the judges
toward leisure and comfort which ultimately results in delay of the cases.

6. Provision for adjournment: The main reason for the delay in the cases is the adjournment
granted by the court on flimsy grounds. Section 309 of Code of Criminal Procedure (CrPC)
and Rule 1,Order XVII of Code of Civil Procedure (CPC) deals with the adjournments and
power of the court to postpone the hearing.

7. Hurried and ill-drafted legislations and statutes on diverse topics enacted, contribute to
some extent to the inflow of cases.

HYPOTHECATION:

Speed serves the best interests of the accused, the survivors and the society at large &
hence justice should be served speedily so for this provisions has to be made out to help the
needy.

Consequences of Delay in Investigation and Trial : The trial court and prosecution should
not allow any delay in investigation as well as trial in the cases of crimes against women
because it provides undue advantage to the accused persons. A criminal prosecution,

7
Robert Lingat: The Classical Law of India, 67, 21922
8
http://lawcommissionofindia.nic.in/51-100/Report78.pdf
 pending above five years or more, may form the basis for quashing the same9. If there is no
progress in investigation for five years, then the prosecution in such circumstance may be
quashed. The Honble Apex Court has ruled in Ramanand V- State 10, that a criminal
proceeding pending above several years (i.e. 13 years) may be quashed.There should be
adequate number of judges with regards to the number of cases coming up, i.e. there should
be least number of pending cases so that theres no burden on judiciary & it can function
properly & in turn can help in the growth of economy.

Refused of registering FIR by police abates offence against women : .The various surveys
conducted by social agencies shows that a large number of crime of rape and molestation
are not reported to the police of disputation in society. May others do not come to courts as
police often refuse to lodge FIRs against the complaints of suffering women. The
provisions of sections 154(1) of Criminal Procedure Code in mandatory in law and hence
police cannot refuse to lodge on FIR. The Honble Full Bench of Apex Court in Lalita
Kumari V- Govt. of U.P., has ruled that a police officer is liable for disciplinary action if
he refuses to lodge on FIR. In similar situation, the Honble Madras High Court in Vijay
Raj Jain V- The Secretary, Home Department & others, has issued direction to take
suitable disciplinary action against police officers refusing to register FIR and taking
prompt action.

OBJECTIVES OF THE STUDY

The aims and objectives of the legal research are as follows:

1. To describe the development of speedy trials in crimes against women in India.

2. To examine the legal regime regulating speedy trial in India & to understand and
focus on the applicability of the same in the cases involving women & to study by
referring to the cases associated with it.

9
Rajendran Singh (Dead0 through L.Rs V- Prem Mal 2007 (4) PLJR 128(SC)
10
Surya Narayan Singh V- State of Bihar; 1987 PLJR 394 (F.B.)
THE ACADEMIC LITERATURE ON SPEEDY TRIALS:

As several writers note, references to a speedy trial date back to the twelfth century and the
Assize of Clarendon, followed by its presence in the Magna Carta of 1215, as well as in the
famous tomes of Sir Edward Coke And because this sacred entitlement . . . had been present
in English law for over half a millennium, it should not be surprising that revolutionaries in
colonial America valued this right.

The speedy trial case law in the United States did not begin to develop until the twentieth
century, with the Supreme Courts 1905 decision in Beavers v. Haubert. In what was a rather
unhelpful ruling for future cases, the Court in Beavers held that the speedy trial clause would
be violated depending upon the circumstances of the particular facts at hand. For the next
several decades the Court incrementally enhanced the speedy trial rights of defendants in a
series of judgments.

In India, neither the constitution nor any existing laws or statutes specifically confer the right
to speedy trial on the accused. Most of the existing laws also do not provide any timeframe in
which a trial must be concluded; in cases where some timeframes have been provided, the
courts have held them to be directory and not mandatory11. Procedural law, i.e. the Code
of Criminal Procedure (CrPC), 1973, provides a statutory time limit to complete an
investigation. Section 167 further provides that a failure to complete investigation within the
statutory timeframe shall lead to release of the accused in custody on bail. The Supreme
Court of India in its landmark judgment12 in Hussainara Khatoon versus State of Bihar [1980
(1) SCC 98] 13explicitly held speedy trial as part of article 21 of the constitution guaranteeing
right to life and liberty.

11 Government of India, The Law Commission on Rape laws in its report 1980
12
Hussainara Khatoon V- State of Bihar; AIR 1979 SC 1360
13
Furthermore in the decision, the court directed towards some of the concerning issues in
respect to the undertrial prisoners. The court became focusing towards the Humane
approach, greater preference to bail options, reduction in the time one has to undergo from
the arrest to the trial etc.
RESEARCH METHODOLOGY

This study basically follows doctrinal research method in the compilation, organisation,
interpretation and systematisation of the primary and secondary source material. The
approach of the study is historic, descriptive and analytical. The data collected, organised and
systematised from the secondary data resources. We have gathered the data from different
websites and also websites of Indian government.

IN CONCLUSION, INDIAN LAWS GOVERNING THE RIGHT TO SPEEDY TRIAL

CAN BE SUMMED UP AS FOLLOWS:

i. The fair, just and reasonable procedure implicit in article 21 of the Constitution of India
grants the accused the right to be tried speedily14 . It is in the interest of all concerned that the
guilt or innocence of the accused is determined as quickly as possible. However, it is neither
advisable nor practicable to fix any time limit for trial of offences. It is for the court to weigh
all the circumstances of a given case before deciding whether there is denial of the right to
speedy trial.

ii. The right to speedy trial flowing from article 21 encompasses all stages; namely,
investigation, inquiry, trial, appeal, revision and retrial.

iii. While determining whether undue delay has occurred, all the attendant circumstances
must be considered, including nature of offence, number of accused and witnesses, the work
load of the court, and prevailing local conditions15. The state is obliged to ensure a speedy
trial, but a realistic and practical approach should be adopted in such matters instead of a
pedantic one.

iv. Each and every delay does not necessarily prejudice the accused. However, inordinately
long delays may be taken as presumptive proof of prejudice. The incarceration of the accused

14
http://www.legalservicesindia.com/article/article/formation-of-special-courts-in-rape-
cases-for-speedy-trial-1965-1.html
15
http://www.thehindu.com/news/national/courts-must-ensure-speedy-trial-in-rape-cases-
supreme-court/article4244887.ece
is relevant16. The prosecution should not be allowed to become a persecution. But the point at
which this may happen depends upon the facts of a given case.

v. Whether the accused asked for a speedy trial or not is immaterial. However, the accused
cannot plead for violation of the right to a speedy trial if they are guilty of dilatory tactics or
the delay has occurred due to the operation of any order of a higher court staying the
proceedings.

vi. If the court concludes that the right to speedy trial of an accused has been breached, it may
quash the charge or conviction, but that is not the only course open to it. The court may make
other appropriate orders considering the nature of offences and other circumstances in a given
case.

16
The Special Courts For Trial Of Oences Against Women Bill, 2016 -SUPRIYA SULE, M.P.