Speedy Trial

Kadra Pahadiya And Others, Petitioners; V. State Of Bihar, Respondent
DATE OF DECISION: 19-03-1997
CITATION(S) : 1997-(004)-SCC -0287 –SC; 1997-(103)-CRLJ -2232 -SC
Secs. 13(1) & 18(1) — Appointment of Special Judicial Magistrates and Special Metropolitan Magistrates for speedy disposal of cases – In certain States, large numbers of such petty cases were withdrawn with a view towards reducing the burden on the regular Courts – Unless a machinery is set up to ensure that such cases will not pile up once again after the system is put on an even keel by the withdrawal of such cases, such a measure will not serve any purpose but will, instead, send a wrong signal to the offenders – Retired judicial officers, officers of the Registry of District Courts and High Courts, as well as other Govt. servants who have the specified experience and qualification, can be requested to accept appointments as part of social service – The High Court must be extremely careful in the conferment of power and should do so based on the qualification and experience of each appointee.
Criminal Procedure Code, 1973 – Secs. 13(1) and 18(1) – Constitution of India – Art. 14 – Constitutional validity of ss. 13(1) and 18(1) – Secs. 13(1) and 18(1) of the Code, insofar as they confined the appointment and conferment of powers of Special Judicial Magistrates and Special Metropolitan Magistrates to any person who holds or has held any post under the Govt., are not arbitrary and violative of art. 14 of the Constitution of India – The words “who holds or has held any post under the Govt.” do not exclude appointment of members belonging to the subordinate Judicial Services – The choice of power to be conferred on the appointees under these two provisions is left to the sole discretion of the High Court.
Secs. 13(1) and 18(1) confer power on the High Court to make the appointments and confer such of the powers as it deems proper from the whole bundle of powers conferrable by or under the Code on a Judicial Magistrate of the First or Second Class or conferrable on a Metropolitan Magistrate as the case may be. The choice of power to be conferred on the appointees under these two provisions is left to the sole discretion of the High Court. The proviso to each sub-section makes it clear that the appointee must possess such qualification and experience in relation to legal affairs as the High Court may by rules specify. Thirdly, the words “who holds or has held any post under the Govt.” do not necessarily exclude judicial officers belonging to the subordinate judiciary of a State/Union Territory. The sub- sections merely enable the High Court to appoint persons, other than judicial officers, who hold or have held any post under the Govt. and who possess the qualification and experience in relation to legal affairs as may be specified by the High Court. Parliament has taken care to leave the question of specifying the requirements for appointment to the High Court. There is, therefore, no warrant for placing a narrow construction on the words “who holds or has held any post under the Govt.” to confine them to appointments of Govt. servants, present or past only, and to exclude appointment of members belonging to the subordinate Judicial Services. Special provision in the nature of an enabling provision had to be made because without such a provision, appointment of Govt. servants, past or present, could not have been possible. Care has also been taken to ensure that the appointments are made of persons who have the necessary qualification and experience in relation to legal affairs which the High Court considers necessary for the exercise of power that may be conferred on the appointee. Furthermore, the duration of appointment has been restricted to one year at a time which would give the High Court an opportunity to observe the work of the appointee to enable it to decide whether or not to extend the appointment for a further period, if the workload justifies such continuance.
The idea underlying the provision for the appointment of Special Judicial Magistrates/Special Metropolitan Magistrates u/ss. 13(1) and 18(1) respectively, is to relieve the regular Courts of the burden of trying those cases which could be disposed of by such Magistrates. Parliament has advisedly left the decision as to the choice of power to be conferred on such Magistrates with the High Court. Once a request is received from the Central/State Govt. by the High Court, the ball is entirely in the High Court, and it is the High Court and the High Court alone which has to decide on the number of appointments to be made, the choice of personnel to be entrusted with such power, and the extent of power to be conferred on such persons. It is the High Court which has to specify the qualification and/or experience that would be required for the discharging of duties by such Magistrates. The period for which such appointments may be made must not exceed one year at a time, which shows that these are not appointments by way of regular entry into service, and are meant to be short- duration appointments to reduce the burden of pendency in regular Courts. The appointees should view the call as a social obligation and not employment; indeed, as a social service to society. That is the spirit of ss. 13 and 18 and every appointee must take the call in that spirit and not expect payment as if they are in the service of the State/Union Territory concerned. That is the reason why the said two provisions expect persons who have retired or are about to retire from Govt. service to be appointed to help clear the pendency.
Secs. 13(1) and 18(1) of the Code, insofar as they confined the appointment and conferment of powers of Special Judicial Magistrates and Special Metropolitan Magistrates to any person who holds or has held any post under the Govt., are not arbitrary and violative of art. 14 of the Constitution of India.
There can be little doubt that when the calendars of Criminal Courts (magistracy) in most of the States, barring a few geographically small States, are clogged and as a result, trial of cases is delayed, there is no justification for not setting a part of the machinery envisioned by the Code into motion. The basic idea in providing for the appointment of Judicial Magistrates, 2nd Class, is to ensure that petty cases do not occupy the time of the regular magisterial Courts.
Retired judicial officers, officers of the Registry of District Courts and High Courts, as well as other Govt. servants who have the specified experience and qualification, can be requested to accept appointments as part of social service and they may be paid a fee to meet their out-of-pocket expenses and honorarium. The High Courts will find any number of public-spirited, retired persons available to extend a helping hand to the criminal justice system in the country. The High Court must be extremely careful in the conferment of power and should do so based on the qualification and experience of each appointee.
In certain States, large numbers of such petty cases were withdrawn with a view towards reducing the burden on the regular Courts. Unless a machinery is set up to ensure that such cases will not pile up once again after the system is put on an even keel by the withdrawal of such cases, such a measure will not serve any purpose but will, instead, send a wrong signal to the offenders that they can commit such infractions with impunity as nothing will happen to them, and ultimately the cases would be withdrawn. That will bring about more indiscipline in society rather than create a culture of discipline which is so vital for national growth. But, if an adequate machinery of the type envisioned by ss. 13 and 18 of the Code is placed in position to ensure that cases do not pile up in future and then the cases are withdrawn with a view to placing the system on an even keel, it will achieve the desired objective to bring about discipline in society and eradicate crime. Supreme Court issued following directions:
(1) The notices against the States of Nagaland, Mizoram, Jammu and Kashmir and Sikkim and the Union Territories of Daman and Diu and Dadra and Nagar Haveli are hereby discharged. (2) Out of the remaining States, those who have not addressed letters of request to their High Courts for appointment of Special Judicial Magistrates/Special Metropolitan Magistrates, are directed to do so within a month’s time so that petty cases may be dealt with by them relieving the regular Judicial Magistrates/Metropolitan Magistrates of such petty cases to enable them to deal with more serious cases. (3) The High Courts of all such States, on receipt of the letter of request, shall determine the total number of such Special Magistrates required to deal with the pendency of petty cases and take immediate steps to appoint them. (4) In cases where the High Court(s) has already received such a letter and has initiated action to appoint such Special Magistrates, it will, within one month, determine the total number of such Special Magistrates needed to dispose of the pendency of petty cases and ensure appointments at an early date, and (5) The High Courts will also ensure that after the regular Magistrate are relieved of petty cases, they would dispose of a larger number of more serious cases so that the offenders are brought to book at an early date and the innocent are not unnecessarily vexed for long spells.