State vs Balawantrai Bhikabhai Parekh and Others

B.P. Singh, J.—We have heard the learned Counsel for the parties at length. A reference has been made to this Court by the Principal District & Session Judge, Mysore (acting as Special Judge) in Special Case Nos. 5/84, 10/84, 12/84, 13/84 and 20/84. The question referred to this Court is:

Whether the right of speedy public trial envisaged under Article 21 of the Constitution of India requires setting out an outer limit beyond which the trial of Criminal Cases amounts to violation of the fundamental right under the said article?

Since we were of the view that reference is not competent u/s 395(2) of Cr. PC we have heard the learned Counsel of the parties on that question. It has not been disputed before us that the reference will not fall under Sub-section-1 of Section 395 of Cr. PC because the question involved is not as to the validity of any Act, Ordinance or Regulation or any provision contained in an Act, Ordinance or Regulation. It was however submitted that the reference will fall under Sub-section-2 of Section 395 Cr. PC which authorities the court to "refer for the decision of the High Court any question of law arising in the hearing of such case". Sub-section-2 of Section 395 Cr. PC envisages a question of law that may arise "in the hearing of a case" which does not relate to the validity of any Act, Ordinance or Regulation. The court may find that the question of law which has arisen is of such significance that it warrants a reference to the High Court so that the case may be decided in the light of the answer to the reference. In our view, the question referred to this Court in the instant case is also not one which falls under Sub-section-2 of Section 395 of the Code. The question that has been referred to this Court is not one which arises "in the hearing of such case". The question referred to this Court involves the question as to whether the prosecution of the accused, having regard to the inordinate delay, does not amount to breach of their fundamental right guaranteed under Article 21 of the Constitution of India. It is the continuance of the prosecution itself which is characterised as being in violation of the constitutional mandate enshrined in Article 21 of the Constitution of India. It will be seen that Section 395 of Cr. PC does not envisage a challenge to the validity of executive action, on the ground that it breaches any of the fundamental rights of the accused. In an appropriate case, the High Court or the Supreme Court may in exercise of its Writ jurisdiction test the validity of such action.

This does not mean that the accused who are facing trial for long number of years, and who contend that the continuance of such prosecution is in breach of their fundamental rights guaranteed under Article 21 of the Constitution of India, are without remedy. All that is observed at this stage is that a reference such as the one made by the learned Principal Sessions Judge, is not maintainable in terms of Section 395 of the Code. The accused have a right to move the High Court in its Writ Jurisdiction and claim appropriate remedy for the alleged breach of their right guaranteed under Article 21 of the Constitution. If so advised, the accused may even move this Court by a criminal petition u/s 482 of the Code, if it be their case that continuance of the prosecution is an abuse of the process of the Court. The jurisdiction to entertain a Writ Petition in cases where fundamental rights are breached is vested in the High Courts and the Supreme Court, and we do not think that this power can be exercised by a Sessions Court, even if we were to hold that continuation of the trial amounted to breach of the fundamental rights of the accused.

We are therefore of the view that the reference made by the Learned Principal Sessions Judge is incompetent. The Criminal Reference is therefore dismissed. However, it will be open to the accused persons to seek their remedy before an appropriate forum.