Criminal Procedure Project

NATIONAL LAW UNIVERSITY ODISHA

4TH SEMESTER, CRIMINAL PROCEDURE PROJECT

FAST-TRACK COURTS IN INDIA

SUBMITTED BY:

Snehashree Hota (2013/BA.LLB/047)

Antim Amlan (2013/BA.LLB/007)

Pradeep Ahirwar (2013/BBA.LLB/026)


CRIMINAL PROCEDURE PROJECT

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I TABLE OF CONTENTS

I TABLE OF CONTENTS ................................................................................................ 2

II TABLE OF AUTHORITIES .......................................................................................... 4

III INTRODUCTION............................................................................................................ 7

IV RESEARCH METHODOLOGY ................................................................................. 10

1) OBJECTIVES .................................................................................................................. 10

2) RESEARCH QUESTIONS ................................................................................................. 10

3) HYPOTHESIS .................................................................................................................. 10

4) SOURCES ....................................................................................................................... 10

V FAST TRACK COURTS IN INDIA: AN ELUCIDATION ...................................... 11

1) JUDGEMENT IN RELATION TO FAST TRACK COURT ....................................................... 11

2) CURRENT STATUS OF FAST TRACK COURTS IN STATES ................................................. 13

3) ANALYSES OF FAST TRACK COURT ............................................................................... 16

1) SUCCESSES AND FAILURES OF FAST TRACK COURTS ................................... 18

a. WHICH CASES ARE TRIED IN THE FAST TRACK COURTS? ............................ 18

B. THE SUSPICIONS RAISED ON THEM .................................................................. 18

2) SOME NOTABLE CASES IDENTIFIED: .................................................................. 19

a. In the Best bakery case: ........................................................................................... 19

b. In the Jessica Lal case ............................................................................................. 19

3) AFFECTING THE PROCESS OF NATURAL JUSTICE:.......................................... 20

4) A MORE SPECIFIC LOOK AT THE RAPE CASES REPORTED ............................ 22

5) ISSUES TO DEAL WITH IN THE LARGER PICTURE IDENTIFIED..................... 23

6) IS THE ARTICLE 14 FOR OTHER CASES VIOLATED? ........................................ 23

7) FAITH ON FAST TRACK COURT ............................................................................ 24

8) BEST BAKERY CASE TRIAL ANALYSED ............................................................. 25

9) DELVING INTO THE WITNESS PROTECTION PROGRAMME .......................... 26

1) THE BLEMISH OF THE FAST TRACK: FAIR TRIAL ........................................................... 28

a. Meaning and scope of Fair Trial ............................................................................. 28

b. Rights of the Accused ............................................................................................... 28

c. Presumption of innocence ........................................................................................ 30

d. Independent & Impartial Judges ............................................................................. 30



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e. The Government’s Arsenal ...................................................................................... 30

2) EMERGENCE OF FAST TRACK COURTS IN INDIA: THE SPEEDY TRIAL SYSTEM31

a. Speedy Trial: Why we need it?................................................................................. 31

b. Evolution of the system ............................................................................................ 32

c. The sluggish Indian Judicial system ........................................................................ 33

3) IMPORTANCE OF SPEEDY JUSTICE ..................................................................... 33

VI CONCLUSION .............................................................................................................. 35

VII BIBLIOGRAPHY ...................................................................................................... 38



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II TABLE OF AUTHORITIES

CASES

A.R. Antulay vs R.S. Nayak 1988 AIR ---------------------------------------------------------------12

Abdul Rahman Antulay v. R.S. Nayak, 1988 AIR 1531, 1988 SCR Supl. ----------------------31

Ansuyaben Kantilal Bhatt v. Rashiklal Manilal Shah, (1997) 5 SCC 457. ----------------------33

Babu Singh v. State of UP, 1978 AIR 527, 1978 SCC (1) 579. -----------------------------------31

Bina K Ramani v. State ILR (2010) Supp.(3) Delhi 476. ------------------------------------------18

Brij Mohan Lal v. Union of India, (2002) 5 SCC 1 -------------------------------------------------10

Hussainara Khatoon v. State of Bihar, 1979 AIR 1360, 1980 SCC (1) 81. ----------------------30

KadraPehadiya vs. State of Bihar,1981 Cr.L.J. 481 -------------------------------------------------32

Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258. -----------------------------------------27

Khatri v. State of Bihar, AIR 1981 SC 1068. --------------------------------------------------------28

M/S SIL Import, USA v M/S Exim Aides Silk Exporters AIR 1999 SC 1609 ------------------31

Mohammed Ajmal Mohammed Amir Kasab v. State of Maharashtra AIR 2012 SC 3565 ---19

Nahar Singh Yadav v. Union of India, (2011) 1 SCC 307. ----------------------------------------27

P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856 ----------------------------------10

Ranjan Dwivedi v Central Board of Investigation, Writ Petition (Crl.) No. 200 OF 2011. --28

S. P Gupta v President of India AIR 1982 SC 149 --------------------------------------------------11

Shyam Singh v. State of Rajasthan, 1973 Cri LJ 441, 443, (Raj.) --------------------------------29

State of Maharashtra v Dr.Praful.B.Desai 2003 (3) SCALE 554. ---------------------------------30

State of U.P. v. Naresh and ors, CRIMINAL APPEAL NO.674 of 2006 ------------------------29

State through Reference v. Ram Singh and Anr. IV (2014) CCR 174 (Del.)--------------------21

Zahira Habibullah H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 -----------------------------27

STATUTES

Speedy Trial Act, 18 U.S.C.A. -------------------------------------------------------------------------31

OTHER AUTHORITIES



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Brief Note on the Scheme of ‘Fast Track Courts’, Dept. of Law and Justice, Govt. of India.

Retrieved from, http://doj.gov.in/?q=node/108 ---------------------------------------------------- 6

Fast Track Courts, Press Information Bureau, Government of India. Retrieved from,

http://pib.nic.in/feature/feyr2001/fmay2001/f010520012.html. --------------------------------- 6

Great Britain. Justice at the Right Price: A Consultation Paper on a Costs Regime for the Fast

Track. [London]: [Lord Chancellors̓ Department], 1998 ----------------------------------------33

Law Commission of India. (2005). One hundred eighty eighth report on proposals for

constitution of hi-tech fast-track commercial divisions in high courts. Delhi: Controller of

Publications. --------------------------------------------------------------------------------------------26

RULES

Law Commission of India, 14th Report, 1958 -------------------------------------------------------33

Recommendations of the 11th Finance Commission, Press Information Bureau, Ministry of

Finance, Government of India ------------------------------------------------------------------------ 7

BOOKS

Camerint, M., McDonald, J., Hess, R., University of Wisconsin, Madison & Worldview

Productions Film. (1981). COURTS AND COUNCILS: DISPUTE SETTLEMENT IN INDIA.

Madison, WI: University of Wisconsin. ------------------------------------------------------------ 7

GEORGE EYRE AND ANDREW STRAHAN Great Britain.. AN ACT FOR THE MORE SPEEDY TRIAL.

London: (1806) ----------------------------------------------------------------------------------------31

Kumar, N. (1997). Natural justice: Principle and practice. Delhi, India: Kanuni Salah Kendra.

-----------------------------------------------------------------------------------------------------------29

KUMAR, N. (NAGENDRA), 1924- (1997). NATURAL JUSTICE: PRINCIPLE AND PRACTICE. Delhi,

India: Kanuni Salah Kendra. -------------------------------------------------------------------------27

Loosen, Anne. DO FAST TRACK COURTS TEMPER JUDICIAL DELAY IN INDIA? 2010. Jain Books

Co. -------------------------------------------------------------------------------------------------------- 6

Majumdar, Nur Md. Abdullah Ahmed, and Ahsan Rashid. Right to Speedy Trial: Indian

Judiciary and Justice Delivery System. 2015. -----------------------------------------------------32

MALIK, SURENDRA, AND SUDEEP MALIK. SUPREME COURT ON CRIMINAL PROCEDURE CODE &

CRIMINAL TRIAL. Lucknow: Eastern Book Co, 2011. -------------------------------------------27

Sarma, B. C. (2012). Fair hearing and access to justice. Kolkata: Eastern Law House. -------28

Singh, J. (1997). Right to speedy justice for undertrial prisoners. New Delhi: Deep & Deep

Publications. --------------------------------------------------------------------------------------------30



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Singh, P. K. (2011). Human rights of accused in the criminal process. Delhi: Swastik

Publications --------------------------------------------------------------------------------------------28

JOURNALS

Asghar Ali Engineer, Lessons of Best Bakery Case, Economic and Political Weekly, July 25,

2003, Vol.38 No. 29 ----------------------------------------------------------------------------------24

Fast Track Courts and Pending Cases, Retrieved from,

http://www.indiaspend.com/investigations/1200-fast-track-courts-in-india-but-600000-

cases-still-pending -------------------------------------------------------------------------------------15

Governance Knowledge Centre, Right to Justice soon to be a Fundamental Right, Retrieved

from, http://indiagovernance.gov.in/news.php?id=526 ------------------------------------------33

Harleen Kaur, IN SUCH A HASTE- THE SYSTEM OF FAST TRACK COURTS IN INDIA ----------------19

Lhendup G. Bhutia, The Case against Fast Track courts, October 12, 2013,

http://www.openthemagazine.com/article/nation/the-case-against-fast-track-courts. -------21

'Protecting The Witness', Economic and Political Weekly, Vol.39 No. 46/47 ------------------26

William Galo, 'EFFECTIVENESS OF INDIA'S FAST TRACK COURTS QUESTIONED' -----------------21



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III INTRODUCTION

Fast track court is the important method to clearing the massive backlog cases

pending in the Indian Court. Purpose of the fast track court is to provide justice as

early as possible. Proceedings, cross question examination, witnesses’ examination

and trial go in speed because if there is a delay in the judgment that amount to justice

denied. It is clear violation of fundament right, even though Indian Constitution

clearly not provides any fundamental rights in relation to speedy trail, but it reflect or

implicit from the Article 21 says that no person is to be deprived of his life or liberty

except in accordance with the procedure established by law.1

The fair procedure cannot to be say if the fast track court cannot guarantee to speedy

trial for the fortitude of the guilt of accused. It cannot say fair procedure if there often

delay in proceedings, trails which may affects or change the evidences and witnesses.

A free and effective judicial system is one of the fundamental features of our

Constitution. In the event that adequate number of judges are not delegated, justice

would not be reachable to the individuals, in this manner decline the basics feature of

the Constitution. It is remarkable that justice delayed is justice denied. On many

occasions the insufficiency in the quantity of judges has unfavourably been remarked

upon. 188th Law Commission Report and Parliamentary Standing Committee along

with judiciary also point out for the establishment of fast track court. There are about

crores of cases pending in the lower courts and 35 lacs cases pending in the High

Court.

In the 11th Finance Commission report2, thousand numbers of Fact Track Court was

established after various recommendation made to Indian Government. First fast track

court was formed for hearing the crimes against female in Delhi on 2nd January 2013.

The main reason to establish these court is to reduce the number of under trials in

jails. There is a prediction that 1.86 lacs under trial cases are pending in the all over

the India. Most of the offender who are in the jails have charged with minor offences

and many of them are in the jail in absence of trail3.

1 Loosen, Anne. DO FAST TRACK COURTS TEMPER JUDICIAL DELAY IN INDIA? 2010. Jain Books Co. PRINT. 2 Brief Note on the Scheme of ‘Fast Track Courts’, Dept. of Law and Justice, Govt. of India. Retrieved from,

http://doj.gov.in/?q=node/108 Last seen on, 01-04-2015 3 Fast Track Courts, Press Information Bureau, Government of India. Retrieved from,

http://pib.nic.in/feature/feyr2001/fmay2001/f010520012.html. Last seen on, 23-03-2015



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The consequences of judicial delays for ordinary litigants are immense, and in some

cases even tragic. Recently a senior citizen who had invested his life's savings in a

nonbanking financial company attempted self-immolation after a Delhi court granted

yet another postponement of the proceedings for recovery of his savings from the

defaulting company. Judicial delays, whether in cases involving high profile persons

or those relating to ordinary litigants, are indefensible, and so there is a dire need to

mitigate their consequences.4

The number of pending cases is indeed alarming. As on July 5, 2000, the total number

of cases pending before the Supreme Court was 21,600 against 1.05 lakhs a decade

ago. As for the High Courts, pending cases number 34 lakhs now, against 19 lakhs 10

years ago. The number of cases pending for more than 10 years is 645 in the Supreme

Court and 5, 00,085 in the High Courts.5

One of the reasons attributed to the huge increase in the number of pending cases in

High Courts is the non-filling of Judges' vacancies in time. There are more than 100

such unfilled vacancies. The number of cases pending trial in the 12,378 district and

subordinate courts in the country is estimated to be about two crores. Of the 12,205

posts of judges and magistrates in these courts, 1,500 are vacant.6

There have been several proposals before the Union government to cut down on

judicial delays. The launching of about 450 fast track courts on April 1, 2011 at the

district level in various States has been one of the measures in this direction. Initially

1,734 such courts are proposed to be set up, at the rate of five in each district.7

The Centre's proposal stems from the recommendation of the Eleventh Finance

Commission (EFC), which has provided a grant of Rs.502.90 crores for the creation

of additional courts, specifically to dispose of long pending cases. Of this, more than

Rs.200 crores has already been disbursed to the States. Funds have been provided for

salaries and for building infrastructure, at the rate of Rs.29 lakhs for each court. Each

fast track court will be asked to dispose of 14 session’s trial cases in a month.

4 Supra Note 1. 5 Camerint, M., McDonald, J., Hess, R., University of Wisconsin, Madison & Worldview Productions Film.

(1981). COURTS AND COUNCILS: DISPUTE SETTLEMENT IN INDIA. Madison, WI: University of Wisconsin. 6 Ibid. 7 Recommendations of the 11th Finance Commission, Press Information Bureau, Ministry of Finance,

Government of India.



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In the first year, these courts are expected to dispose of all the 1.8 lakh cases

involving under-trials. According to N.C. Jain, member, EFC, the scheme will help

make enormous savings in terms of the expenses incurred over the maintenance of

under-trials, who numbered 1, 88,241 as on December 31, 1998.

Jain estimates that the average cost per under-trial a day is Rs.55, covering food,

medicine and clothing, with extra provision for sanitation and water, correctional

programmes, and transportation to the courts and back. The annual expenditure on

each under-trial thus comes to about Rs.20, 000.

The maintenance of the 1.2 lakh under-trials in prisons across the country costs the

government Rs.240 crores a year. This amount could be saved if cases against them

were expeditiously tried and disposed of. The EFC has estimated that the annual

recurring expenditure in respect of fast track sessions courts at the rate of five a

district would be approximately Rs.87 crores. The net saving for the government

would, therefore, be Rs.153 crores a year. Speedy trial of the cases against under-

trials would also be an answer to charges of human rights violations.

The fast track court scheme envisages the appointment, for a tenure of two years, of

ad hoc Judges from among retired sessions or additional sessions Judges, members of

the Bar, and judicial officers who would be promoted on an ad hoc basis. The

selection of Judges will be made by the High Courts. The Centre has directed the

State governments to fill the vacancies that might arise in the wake of ad hoc

promotions through a special drive.



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IV RESEARCH METHODOLOGY

1) OBJECTIVES

The objective of the research paper is to ascertain how far placing Fast-track court in the

judicial system in India has achieved its purpose as an institution to overcome pre-existing

lacunas.

2) RESEARCH QUESTIONS

Has the purpose for the inception of Fast-track courts been fulfilled?

What are the factors which have either aided or degraded the functioning of Fast-track

courts?

How far the decisions imparted have had a progressive contribution to Criminal

jurisprudence?

What are the basis of Fast-tracking a case?

How does they affect the Rights of the Accused and the quantum of the legality being

followed during the fast-tracking?

3) HYPOTHESIS

Inspite of the criticisms handed out to the fast track courts, they have managed to reduce

burden of pending cases on the judiciary.

The court follows due process model that the Indian inquisitorial system stands by it.

4) SOURCES

The sources used while preparing this case analysis have been categorically described below.

The author has used online web sources like Manupatra, SCC-Online and other news web

blogs to research and discuss the criticality of this case.



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V FAST TRACK COURTS IN INDIA: AN ELUCIDATION

CHAPTER I

1) JUDGEMENT IN RELATION TO FAST TRACK COURT

Supreme Court monitoring the functions of Fast Track Court and it was ruled in the

famous case Brij Mohan v Union of India. In the particular case, Supreme Court held

that the scheme of Fast Track should not to be disbanded from the sudden and

continue the Fast Track Court. It was said in the case that Supreme Court is not

perfect place to determine the policies matter but it should be interfered so rarely

because it is matter of protection of the fundamental right. Government should also

appoint retired judges who had good reputation regarding honesty, integrity, and

character wise so he to heard the case wisely. Court directed that the fund allocated

will not withhold in any circumstances and issued certain guideline for the creation of

new fast track court. And central and state government should be informed about the

utilization of allocated money time to time8.

Another leading case P. Ramachandra Rao v. State of Karnataka9 speedy trail is a

matter of fundamental right and it is the right under Article 21 of Indian Constitution

that every person to get reasonable speedy trail. Constitutional jurisprudence has

tested the true nature and validity of fair procedure and speedy trail. Court should go

one step ahead and state a limit and beyond that limit no criminal case will not

entertained except in certain cases where parties show valid reason to accept criminal

case.

In another case S. P Gupta v President of India court held that it the duty of state to

provide for fair and efficient administration of justice. Promote the public interest

litigation and remove the technical barriers against easy accessibility to promote

justice. Justice can reach to the people who are exploited and deprived by their basic

needs so they enjoy the socio-economic rights granted to them. Ant these right give

real justice and make their life meaningful instead of remaining mere empty hopes.

Under Article 219 of the Indian Constitution of India, is provide in appoint of

8 Brij Mohan Lal v. Union of India, (2002) 5 SCC 1 9 P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856



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satisfactory numbers of judges and that Court had the power to through the executive

to do so. Public interest also requires whomsoever appoint as a judges should be fit

mentally, physically and intellectually and morally. Contrary it would be weal to

appoint a person who is not fit then it would create trouble10.

Maneka Gandhi v Union of India that fundamental rights should not to be read in

water tight compartment but it should read as one integral whole. The law should be

reasonable, fair and so it would not violate the articles 21, 19 and 14 that means law

should not be arbitrary, fanciful or oppressive. The speedy trial should be fair and

reasonable which is important part of right to life and liberty under these article.

Fast track court effectively disposed the cases but these cases are still pending in the

high court. Fast track court decide the BPO Worker Case in November 2010 and

awarding life imprisonment to all the five with fine of Rs 50,000 each. But after 4

year BPO case was heard by the Delhi High Court.

In Shakti Mill Gang rape case photo journalist was gang raped by the five people,

including the minor. Fast track court heard the case in August 2013 and awarding the

death sentence to three and the minor was sent to juvenile justice board. After 7

months, case heard by the Bombay High Court, awarding death sentence. But the

victim are still not get justice because of long pendency of the cases in the Supreme

Court.

Another important case as all we know the Delhi Gang rape, physiotherapy student

was gang raped by the six people including a minor. Fast Track Court took 7 months

to complete court proceedings. Court awarding death sentence to four and the minor

was sent to juvenile justice board for three year. Delhi high court upheld the fast track

court decision in March. But still the case is pending in the Supreme Court after 10

month from the decision passed by the Delhi High Court.

Constitution bench in “A R. Antulay cases court states 11 guidelines but only few of

them are related to the circumstances.

(i) Fail, just and reasonable procedure implied in article 21 of Constitution of

India creates a right in the accused to be tried speedily.

10 S. P Gupta v President of India AIR 1982 SC 149



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(ii) Right to speedy trial flowing from article 21 encompasses all the stages like

stage of investigation, inquiry, trial, appeal, revision and re-trial.

(iii) Who is responsible for the delay and what factors have contributed towards

delay are relevant factors like nature of crime, numbers of witness and

accused”11.

The Criminal Courts ought to practice their accessible forces, for example, those

under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the

privilege to fast trial. A watchful and industrious trial judge can end up being

preferred defender of such directly over any rules. In suitable cases purview of High

Court under Section 482 of Cr.P.C. furthermore, Articles 226 and 227 of Constitution

can be conjured looking for fitting help or suitable bearings.

In India, the proportion between the judges and population is very low i.e. 12 number

of judges over one million people but if we compare this with America, they have 50

judges over one million of population. After the Delhi gang rape case, government

amended the law that trial of rape case should be completed within 2 month.

Fast Track Court are function same and follow the normal procedure as follows in

other trial. But government allocated special fund to fast track court to appoint special

judges and may special infrastructure. There is special procedure follow in certain

cases in the fast track court when the accused is below the age of 18 year. Minor

accused should be sent to juvenile justice board and remain in the custody for certain

fix period of time.

2) CURRENT STATUS OF FAST TRACK COURTS IN STATES

TABLE 1: NUMBER OF FAST TRACK COURTS AND THE PENDING CASES IN FTC12S

State No of FTC No of cases

transferred until

March 31, 2011

Pending cases

Arunachal Pradesh 3 4,162 2,502

Bihar` 179 2,39,278 80,173

11 A.R. Antulay vs R.S. Nayak 1988 AIR 1531 12 http://www.prsindia.org/theprsblog/?p=2388



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Assam 20 72,191 16,380

West Bengal 109 1,46,083 32,180

Goa 5 5,096 1,079

Punjab 15 58,570 12,223

Jharkhand 38 1,10,027 22,238

Gujarat 61 5,37.636 1,03,340

Chattisgarh 25 9,4670 18,095

Meghalaya 3 1,031 188

Rajasthan 83 1,49,447 26,423

Himachal Pradesh 9 40,126 6,699

Karnataka 87 2,18,402 34,335

Andhra Pradesh 108 2,36,928 36,975

Nagaland 2 845 129

Kerala 38 1,09,160 13,793

Mizoram 3 18,68 233

Haryana 6 38,359 4,769

Madhya Pradesh 84 3,60,602 43,239

UP 153 4,64,775 53,117

Maharashtra 51 4,23,518 41,899

Tamil Nadu 49 4,11,957 40,621

Uttarakhand 20 98,797 9006

Orissa 35 66,199 5,758



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Manipur 2 3,059 198

Tripura 3 5,812 221

Total 1192 3898598 6,05,813

TABLE. 2

State Number of FTCs

Top 5

Bihar 179

U.P 153

West Bengal 109

Andhra Pradesh 108

Bottom 5

Manipur 2

Nagaland 2

Meghalaya 3

Mizoram 3

Tripura 3

Total 1,192

ORISSA, U.P FAST TRACK COURTS MOST EFFICIENT

State Transferred cases Disposed cases Pending cases Clearance rate

Top 5

Tripura 5,812 5,591 221 96

Manipur 3,059 2,861 198 94

Orissa 66,199 60,441 5758 91



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U.P 98,797 89,791 9006 91

Tamil Nadu 4,11,957 3,71,336 40,621 90

Bottom 5

Arunachal

Pradesh 4,162 1,660 2,502 40

Bihar 2,39,278 1,59,105 80,173 66

Assam 72,191 55,811 16,380 77

West Bengal 1,46,083 1,13,903 32,180 78

Goa 5096 4017 1079 79

Total 3,898,598 3,292,785 605,813 84

As given in the table, highest number of the fast track court in Bihar followed by

Uttar Pradesh, West Bengal and Andhra Pradesh, where lowest three number of fast

track court are in all the 6 state North East states. Bihar also has the second highest

pending cases in the country. But the most efficient and effective justice delivered by

the Tripura, Manipur has the highest rate of disposing the cases followed by the

Odisha, Uttar Pradesh and Tamil Nadu. And the top bottom states Arunachal Pradesh,

Bihar Assam, West Bengal and Goa has the lowest disposing rate. 3.89 million Cases

has been transferred to the fast track court where only 3.29 million cases have

disposed13.

3) ANALYSES OF FAST TRACK COURT

Procedure of the Fast Track Court is same as normal court and it govern by the

Criminal Procedure Code. But it not allow any of the party to take long date that

means it give rest only for shorter period of time. People are not happy the way these

court are working and called these court as 'fast-track injustice. The standard of these

court goes down because these courts are try to finish the idealistic targets of cases

rather than providing good judgment. They are ordered that they should not to get

13 Fast Track Courts and Pending Cases, Retrieved from, http://www.indiaspend.com/investigations/1200-fast-

track-courts-in-india-but-600000-cases-still-pending. Last seen on, 25-03-2015.



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involved too much in the technicality of the problem. If they think fit that a person is

liable for his act, then pronounce him guilty for his negligent act and if they think fit

that he is not liable then announce him innocent. But the Criminal law system is not

only limited as to declare him guilty or not guilty but it needs more care and attention.

Judges should not to decide the case on mere ideas, feeling or guesses by cutting the

evidence and not allowing the full cross examination and even allow proceeding in

the absence of lawyers in many cases. Because sometimes when the opposite side

lawyers or witness are not present then Judges make the case ex-party and decide the

case in favour of one party. People are unhappy upset and unsatisfactory and

objecting the justice delivery system when these judgment made by the judges.

Fast-track courts established solely deal the rape cases, it is right? But what about

other crimes like domestic violence cases, matrimonial cases tribal displacement cases

slum demolition cases labour cases. Rapes case in India, are not only problem but

there is huge pendency of other types of cases in the courts or to tackle other crimes is

not important. Like women, who is fight for divorce, maintenance and guardianship

for their children since last 10 year? Or when one person was defrauded,

misrepresented by other person and the person lose all his property is it not important?

Government established fast track court only for rape there is mockery, fun with the

people because Government is trying to sort out one kind of cases i.e. rape cases.

People don't need any politicians show off and play with our torment, people want to

see to punish the culprit and all round action from the government.

Purpose of the fast track is not achieved in real sense because either the complete

evidences and witnesses are not produce before the court or somehow the evidence

produce in the court. Judges either escape or cut the long queue of the witness which

effect the decision of the case. Judges gave the decision on basis of their wisdom but

victim will not get justice immediately after the case decided by the fast track court

because there is long pending of cases in High Court and Supreme Court.



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CHAPTER II

1) SUCCESSES AND FAILURES OF FAST TRACK COURTS

The famous rape case that occurred in Delhi in 2012 December was also one which

was tried, as per the government's order in a fast track court, following which several

fast track courts were set up for trying cases of rape. This case was tried within a

period of 9 months after which the verdict of conviction was issued. The Department

of Finance and Justice both as decided had resorted to this 'fast track process' in order

to clear backlogs and here out the under trial prisoners who had been in jails beyond

the maximum period ascertained for the committed offence.

A fast track court hears cases on a day to day basis and supposed to function

efficiently. The funding for these courts was received till the year 2011after which the

government ceased it’s funding. The administration of it is largely dependent on the

respective High court and without the funding from the state governments the

functioning of these courts are paralysed, which has occurred in the present scenario

causing huge disappointment.

a. WHICH CASES ARE TRIED IN THE FAST TRACK COURTS?

There has been no guidelines set for any court that is to be fast tracked and the trend

of cases that have been noticed to have been taken up are generally the one which

gain a lot of media attention. This has been one of the biases for which the fast track

courts have been blamed for violating the right to equality that is handed out to the

citizens by our constitution. In absence of any codification of the cases to be sent to

these courts there can be the problem of arbitrariness.

B. THE SUSPICIONS RAISED ON THEM

Fast tracking doesn't mean dispensing with the criminal justice system but hearing a

case on daily basis, with a few adjournments and arrive at the decision as early as

possible.

These courts have always invited high amount suspicion from the judiciary especially

from the High Courts for reasons such as:

1. The procedures irregularities many a times admonished by the higher courts and



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2. The merits and experience of the appointed ad hoc judges of the fast track courts.

The major problem lies in the treatment that the judiciary or the rest of the system hands out

to these courts. In some states these courts are considered to be out of the batches of normal

courts. They can only function the best if they are kept within a framework of the supervisory

high courts and can deliver better with efficiency if the funding of these courts is not

restricted as being done.

2) SOME NOTABLE CASES IDENTIFIED:

a. In the Best bakery case14:

This case is believed to be the worst example of the functioning of the fast track

courts and its repercussions and is labelled as a mockery to the judicial system of

India. There was no proper taking up of evidence by the court in the beginning of the

case. In 2002, in Vadodara city of Gujarat after the massacre killings of the Godhra

riots 14 people were believed to be burnt alive.

This case was tried in the Baroda fast track court that acquitted the 21 accused after a

short trial of 41 days, amidst alleged procedural irregularities. The blame was put on

the police by the court for not investigating properly and the witnesses who retracted

their statements later. This verdict was also upheld by the High Court but it was only

after the National Human Rights Commission filed a petition in the Supreme Court

that a retrial was conducted. In this case the Supreme Court itself observed that there

has been a grave miscarriage of justice on the part of the fast track court.

b. In the Jessica Lal case15

There was no separate fast track court but after the huge public outcry over the 2006

acquittal of Manu Sharma because of retraction of statements by the prosecution

witnesses, that further led to several applications being sent to the President and Prime

Minister, compelled the High Court to take up the case once again without many

adjournments. This case in was reported by Media to have been fast- tracked by the

courts. The Jessica Lal case is a clear example of how a case can be fast tracked

without a special court being established for the purpose and avoiding the suspicion

that surrounds such form of courts.

14 Zahira Habibullah Sheikh v. State of Gujarat and Ors. AIR 2006 SC 1367. 15 Bina K Ramani v. State ILR (2010) Supp.(3) Delhi 476.



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The case of Ajmal Kasab16 was put in the Fast Track Court in 2009, January on

grounds of waging war on the nation and killing 166 people (murder). There was an

11,000 pages chargesheet filed and he was charged with 86 offences and was

convicted and sentenced to capital punishment. Appeal went up to the High Court and

Supreme Court calling also for a mercy petition which did not come through and

Kasab was hanged. In this case the procedure followed by the fast track courts was

appreciated because neither did it deny rights to the accused in the circumstantial

outrage nor did the lengthy procedure hamper justice to the victims.

3) AFFECTING THE PROCESS OF NATURAL JUSTICE:

The similarity amongst the cases generally taken up by the judiciary under the fast

track courts have been the ones under continued public eye and scrutiny of interested

intellectuals that pressurised both the executive and the Judiciary to perform their

duty. It has also been noticed that these fast track courts are handed with some

unrealistic targets when seen in comparison to the ordinary judicial process. As per

the statement released by the department of Justice "the information with High Courts

or State Governments- out of 38.90 lakh cases that have been transferred into the

jurisdiction of these courts, already 32.34 lakh cases have been disposed". An issue

this data raises in one's mind is whether such high numbers of disposal which were

unachievable in normal procedural courts but made possible through these courts,

have followed the due process of natural justice and have the rights that have been

guaranteed to the accused and victim under the law been secured.

What the Judiciary as well as the Executive needs to apply is the refilling the lacuna

or gap of judges that the Indian legal system suffers at present. Efficiency of the

courts can be increased by increasing the number of judges Five times in comparison

to the present.

A Senior Supreme Court Advocate in an interview to the 'Voice of America' stated

that the required number of judges in a developing country is 60 per million whereas

in India the target reached is only of 12 per million, thus lagging behind by one fifth

of the needed numbers.17

16 Mohammed Ajmal Mohammed Amir Kasab v. State of Maharashtra AIR 2012 SC 3565. 17Harleen Kaur, IN SUCH A HASTE- THE SYSTEM OF FAST TRACK COURTS IN INDIA, Retrieved from,

http://blog.ipleaders.in/the-system-of-fast-track-courts-india/. Last seen on September 25, 2013



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At the crux, it is the session’s court with increased efficiency that constitutes a Fast

track court. The increasing in Judiciary that is extremely necessary for the present

legal system to correct the scenario of ' delayed Justice'.

The very interview of Advocate Collin Gonsalves who is also the Director of the New

Delhi-Human Rights Law Network also elucidates a number of facts in relation to the

functioning of the Fast track courts. As we have one- fifth the number of required

judges, a case that is supposed to take 1 year in turn takes more than 5 years. Here the

Judge handles 5 times more number of cases than he ought to have thus adjourns four-

fifth of the cases, finally dealing only with one-fifth. The way that the government

resorted to tackle this issue was by creating fast track courts, which was nothing more

than a 'piece- meal' approach or as always done by the government a knee-jerk

reaction that is palliative to a present outrage.

But the government by the time it was 2010- 2011 back tracked and withdrew funding

these courts as they stated it to be too expensive for the government to afford for

judiciary. Hence they planned to disband these courts.

Along with the unrealistic targets offered these courts generally do not step into the

formal technicalities of a case and often operate on guess work. People who have

worked in these fast track courts have termed it as 'fast track -injustice'. The judges

convict if they feel one is guilty and acquit if they are with the feeling that the person

is innocent, which is so less than a joke out of the Criminal Justice System. Decisions

made in accordance to fundamentals of criminal justice system and procedure

established by law are not based on guess work or hunches. Judges in many cases

have done away with a full cross examination, in a few proceeding without lawyers.

Thus the system turned out to be one that did not satisfactorily deliver justice.

The money that was invested in the beginning and then withdrawn is needed and the

administration of these courts needs to be looked into on more serious accounts when

they are established. In a country where 97 out of 100 acquittals are due to procedural

irregularities done mostly by the lower courts, it is extremely crucial to go into the

intricacies of a case when the case is tried for the first time, all parties should be heard

following proper procedures and all aspects of law to be secured. There is a dire need

to increase the number of judges as per required standards. Even the idea of fast track



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courts was welcomed due to the fact that at least more number of judges would be

appointed.18

4) A MORE SPECIFIC LOOK AT THE RAPE CASES REPORTED

However as discussed in a few instances such as the Delhi gang rape case19 the fast

track court did exemplify a functioning of its kind. Rape cases generally take 3 years

for a judgment to turn out. In this case 112 witnesses were testified, this included also

the doctors who treated the girl in Mount Elizabeth Hospital Singapore. The evidence

ran through hundreds of pages.

This was one case that restructured people's faith in the judiciary and displayed its

strength and speedy justice dispensation. Six- Subsequent fast track courts were set up

to address issues for dealing with cases of sexual assaults.

Yet it is not clear whether these Fast track courts have addressed issues of justice as

determined for them to have. Expectations from the Fast track courts on sexual

assaults was to achieve better conviction rates and prevent the witnesses from turning

hostile over a period of time of long trial procedures. But the data state otherwise.

Just before the 6 fast track courts being set up there were 1400 rape cases in the

country awaiting a trial and by the time the fast track court cleared up a few of these

within 6 months 1400 more cases came up. The sustenance of these fast track courts,

remaining under the aegis of state funding, are questionable

The data which the prosecution of Delhi provided to The Wall Street Journal, these 6

fast track courts could only manage a 32% of conviction rate up till the June of 2013.

To be more specific these courts took up 299 trials unto their hands out of which only

95 resulted in conviction. It shall be interesting to notice that the regular courts of

Delhi which tried 547 cases in 2012, held out convictions in 204 out of them, which

amounts to 37% of conviction rate.20 Talking of the Capital's most famous Saket Fast

track court 3 out of 25 result in convictions. The Public Prosecutor of the court BS

Kain stated "courts are not here to provide for conviction but to make the cases reach

18 William Galo, 'EFFECTIVENESS OF INDIA'S FAST TRACK COURTS QUESTIONED', Retrieved from,

http://www.voanews.com/content/effectiveness_questioned_of_indias_fast_track_courts_seeking_justice_for_ra

pe_victims/1578020.html. Last seen on January 4, 2013. 19 State through Reference v. Ram Singh and Anr. IV (2014) CCR 174 (Del.). 20 Lhendup G. Bhutia, The Case against Fast Track courts, October 12, 2013,

http://www.openthemagazine.com/article/nation/the-case-against-fast-track-courts.



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finality, most of the cases here that resulted in acquittal were once where the

witnesses turned hostile.

The courts in Tees-Hazari, Rohini, Saket and Kakardooma are often criticised as the

palliative measures taken by the government.

5) ISSUES TO DEAL WITH IN THE LARGER PICTURE IDENTIFIED

One can understand now, why the very basis of fast track justice questioned. It has

been stated in many instances by the media, the intellectuals and international

observer agencies such as UN that one of the eminent reasons for more cases of rape

occurring in India is the judicial system which due to its ill functioning and procedural

burden has caused the conviction rate in rape cases fall. One can also hold the Red-

tapism and Corruption responsible for the above dismal situation. Witnesses are often

subjected to the power influences of the accused, if the accused holds an important

position in the organisational structure of the society. One can also call into question

the ''witness protection system'' provided by the state and also credibility of a citizen

to realise his role in the process of justice.

There is a wrong notion with regards to the fact that the performance of judiciary can

only be determined through its given convictions, rather a responsible judiciary is one

which follows procedure and efficiently examines the available evidences and

witnesses. The main problem we face at the base is the investigation of police which

weakens the case of the prosecution and careful upkeep of the witnesses which is

generally absent. So the failure is just not on the part of the Judiciary but also the

Executive who do not adequately bring out every aspect related to the case due to

their faulty investigation.

6) IS THE ARTICLE 14 FOR OTHER CASES VIOLATED?

In the given scenario of shortage of Judges, if there is a choice made to fast track

some cases at the sexual assault cases, it is at a sacrifice of the speed of other variety

of cases. For instance the 6 fast track courts got there set of judges chosen from the

regular session’s court, leaving out of the rest few number of judges overburdened

with work. The cases of murder, theft, robbery and riots are equally important and

have kept several victims in expectations and prisoners languishing in jails awaiting

sentencing.



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When the issue of corruption was raised by the Anna Hazare movement the

government took up the issue seriously and out of 86 session’s courts in Delhi, 26

were made anti-corruption courts, again backtracking the other cases that require

attention. So each time the Government has fast tracked cases that are have at its basis

an issue that the public is raged upon or media has highlighted, leaving the rest in

dearth.

The legal basis of selecting a case that is to be fast tracked only remains known to the

government, but as being evidently put up to the others, the basis is, if a case has been

under great scrutiny of masses the case is taken up in a fast track court.

There are several basis elucidated such as Fast track court for Domestic Violence,

The Dowry deaths and Terrorist acts etc. Yet there are several cases that are important

but have not attracted the need of being fast tracked- riots, murders, robbery, which

also have also affected the public or the society at large like other crimes.

7) FAITH ON FAST TRACK COURT

Here we shall discuss another case that was dealt in the Dwarka Fast track court. A

farmhouse guard was alleged to have raped and then murdered a 3 year old girl, here

the trial was completed in 10 days and the court awarded a death sentence to the

accused. Even though the conviction was not questionable, his trial is. It is extremely

surprising as to how in a rape case- both sides being heard, cross-examination of

witnesses, verification of evidences and other intricacies be sorted in Toto in a matter

of 10 days. This again raised doubts on the very installation of courts- To secure

rights of both the parties and justice shall seem to be done.

A large number of cases of the Fast Track on Appeal has been overturned by the

Higher Courts. The basic reason for this overturning is the lack of examination and

proper inquiry at the court's end .There instances of 7-8 day trials reported in

Rajasthan Fast track courts. The public celebrates these decisions in great gusto but

fails to realise how justice has been marred for the sake of speed and finality.

The judges are often suggested to increase the conviction rates in the due course of

being pressurised by the media and the people, and this as dangerous a suggestion as

it can get. A clear violation of "a person to be held guilty unless proven beyond

reasonable doubt"



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A notion presently undermined is the fact that we follow the due process model where

in it is believed that ''a hundred guilty might be acquitted but not a single innocent

shall be punished". So there needs to be a greater degree of check on these courts with

regards to the fact that there is no irregularity and no 'fast track -injustice'.

8) BEST BAKERY CASE TRIAL ANALYSED

As it is the cases of riots post-independence have been adjudged with 90 % of

acquittal which is a shock in itself. In the best Bakery case tried in the fast track

court.21

The case was tried over a year and as in most cases, the main witness turned hostile.

The year gave adequate time to the workers of VHP-BJP to aid in influencing the

witnesses especially Zaheera Sheikh the prime witness to whose family the Best

Bakery belonged, obviously no security or protection was provided to these witnesses.

Zaheera stated in court that the alleged 21 persons were not the ones involved in the

killing. It was also seen that an MLA of BJP named Madhu Shrivastav had escorted

her home after the trial. Later in a press conference Sheikh accepted the fact that she

had received threat calls for her family to be killed and she was coerced to commit

perjury under "fear of life". There was utmost involvement of the government

agencies which ravaged path to justice.

The mother of Zaheera Sheikh who was also a witness turned hostile, later she too

confessed to have been under threat to lie. The witnesses were overturned from their

statement even before the trial begun.

The then Chairman of the National Commission on Human Rights is believed to have

said that the Best Bakery case with the acquittal of the 21 accused has amounted to a

grave "miscarriage of Justice" and advised the state government to appeal against it. A

team of the Commission paid a visit to the riot situation and met the witnesses to

examine them but hardly anybody turned out, they also asked the High Court and the

State Government to Cooperate but in vain.

21 Asghar Ali Engineer, Lessons of Best Bakery Case, Economic and Political Weekly, July 25, 2003, Vol.38

No. 29, pp. 3046-3047.



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Interestingly just before the Best Bakery occurrence the NHRC had asked the Police

in Gujarat to provide protection to the witnesses who were crucial to the trials but this

was not adhered to either by the Police or the Gujarat Government.

In this case neither the Police carried out proper Investigation nor did they frame

appropriate charges or take any amount of reasonable care to protect the witnesses.

Justice Mahida, who was in the Bench trying the case stated "Churchill was right in

saying that India now goes into the thugs" There was a clear discrimination when

comparing the culprits of the Godhra riots who were charged under POTA, whose bail

applications were vehemently refused and the culprits in post- Godhra riots who were

acquitted. The Police has been deeply influenced by the ruling government and on

deliberate knowledge have avoided a proper and efficient investigation.22

Legal Experts state that The Best Bakery Case is a classic example of "careless and

shoddy" police action in due course of investigation with a goal to allow the guilty go

scot free from the clutches of law.

9) DELVING INTO THE WITNESS PROTECTION PROGRAMME

One of the most infamous reasons why the trial of the Fast track courts is blamed is

the witnesses who are involved in the trial and withdraw their statements, causing the

court to difficulty in deciding the right way. The witnesses as we all know play a

major role in the decision making process and prior to that the inquiry followed by the

court but when this very base is dormant, it majorly results in hampering the judicial

judgment.

In Best Bakery Case, finally the Supreme Court Intervened and transferred the case to

Mumbai accompanied with hardened criticisms pointing an apprehensive finger onto

the Gujarat Judicial system, and also opening an avenue towards faith in the judgment

and procedures to be followed in the other cases of riots which are under trial. After

Zaheera Sheikh publicly declaring that she retracted her statement that she on an

earlier instance had given to NHRC, has brought up the whole issue of "protection to

witness" not only before or during the trial but for a legitimate time till he or she is

out of danger, especially in crucial political involvement and sensitive cases. Though

the task is tedious it is necessary at the earliest. The lack in effective economic

22 Supra Note 1.



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security and physical protection of both victims as well as witness leaves them

vulnerable to the influence and use of force by the parties interested in the decision.

The victims that are due to face the trial or undergo a trial have no other system to

rely on other than their self-survived family or religious networks and at times NGOs

which take steps to rebuild or rehabilitate their life whereas the state remains hostile

to making such provisions. The scenario today being many either facing the ravage of

fighting for justice as an outcast or suffer situations similar to their co-victims. Thus

one can state that the withdrawal of the victims or passiveness in a trial is also a cause

that the courts find justice a hard goal to be achieved.

There overall is a lack of Comprehensive Witness protection program in the present

judicial system of India, one of the issues that the Law Commission of India in its

paper submitted in August 2004 has suggested.23 Protection of a witness within the

premises of the court is rarely an issue during questioning, cross examination or

camera-trials, however if the case concerned is of situations as riots especially when

the state is not a neutral party, protection is all the more essential and difficult to be

ascertained.24

Why does a witness retract his/her statement? is a major issue to addressed and

resolved, because in many cases it becomes essential in deciding the case as many

truths can be unsheathed in the process of questioning and finding out the cause for

the retraction. Sometimes the families involved in the prosecution are victimised to

continual harassment that leads the witness to withdraw.

In a contrast to the issue we discussed above in The Best Bakery case the apex court

passed a landmark judgment not only credited for convicting the accused but also for

sentencing the famous witness Zaheera Sheikh to one year of imprisonment for

perjury in the fast track court.

23 Law Commission of India. (2005). One hundred eighty eighth report on proposals for constitution of hi-tech

fast-track commercial divisions in high courts. Delhi: Controller of Publications. 24 'Protecting The Witness', Economic and Political Weekly, Vol.39 No. 46/47, November 24,2004, p.4948.



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CHAPTER III

1) THE BLEMISH OF THE FAST TRACK: FAIR TRIAL

a. Meaning and scope of Fair Trial

The liberal interpretation of this term can be basically understood as the proper and

fair opportunities to the accused to prove his innocence. Adducing evidence in

support of the defence in a valuable right, denial of that right means denial of fair

trial.25 The deduction of the meaning can be done from Article 21 of the Constitution

of India read with Sec. 243 of Criminal Procedure Code, 1973.26

A criminal trial is a judicial examination of evidence with the object of punishing the

offenders on a proper proof of relevant facts, the essential question being the guilt or

innocence of the accused. Hence, a criminal trial, which may result in depriving a

person of not only his personal liberty but also his life has to be unbiased in any

case.27 The sorry state of affairs in the Fast-track courts in India can’t be neglected as

they are blamed for skipping the high held procedure of Fair criminal trials.

The concept of fair trial entails familiar triangulation of interests to the accused, the

victim and the society and it is the community that acts through the state and

prosecuting agencies.28 Interest of the society is not to be treated completely disdain

and as persona non grata. It has to be unmistakably understood that a trial which is

primarily aimed at ascertaining the truth has to be fair to all concerned. Not providing

speedy and fair trial to the accused and his family would also be like turning a

Nelson’s eye to the society at large.29

b. Rights of the Accused

In India, it is seen that, Fast-track courts are specially established to dispose of the

cases pending in Criminal and Civil courts. While carrying this action of evicting the

backlog of cases quickly, the appalling misdemeanours by the courts of neglecting the

25MALIK, SURENDRA, AND SUDEEP MALIK. SUPREME COURT ON CRIMINAL PROCEDURE CODE & CRIMINAL

TRIAL. Lucknow: Eastern Book Co, 2011. 26Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258. 27Nahar Singh Yadav v. Union of India, (2011) 1 SCC 307. 28 KUMAR, N. (NAGENDRA), 1924- (1997). NATURAL JUSTICE: PRINCIPLE AND PRACTICE. Delhi, India: Kanuni

Salah Kendra. 29Zahira Habibullah H. Sheikh v. State of Gujarat, (2004) 4 SCC 158.



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Rights of the accused is something which has been brushed under the carpet since the

days of TADA.30

Fair trial is a fundamental essence of Criminal jurisprudence evolving out of

Constitutional Law i.e. particularly, Article 21 of the Constitution and rests on the

basic principle of presumption of innocence.31 International institutional instruments

such as the United Nations Convention on Human Rights, International Covenant on

Civil and Political Rights, Universal Declaration of Human Rights, European and

Canadian Charter of Rights and Freedoms have helped enumerating the principles and

the concept of rights of the accused. Additionally, an accused reserves several pre-

trial and post-trial rights as well that are guaranteed to the accused in the CrPC.32

Pre-trial right includes the right to have acquaintance of many things which include

the framed accusations, right to consult a lawyer and a fair opportunity to defend

himself.33

In the case of Khatri v State of Bihar34, it was held that an accused is entitled to free

legal services. Also, in the case of Hussainara Khatoon v State of Bihar35, it was held

that a speedy trial is an essential ingredient of fair trial procedure and it is the

constitutional obligation of the State to set up a procedure that would ensure the

same.36

In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors, the Hon’ble Supreme

Court of India observed that, “each one has an inbuilt right to be dealt with fairly in a

criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the

victim and to society. Fair trial obviously would mean a trial before an impartial

judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial

in which bias or prejudice for or against the accused, the witness or the cause which

is being tried, is eliminated.”37

30 SARMA, B. C. FAIR HEARING AND ACCESS TO JUSTICE. Kolkata: Eastern Law House. (2012). 31 Supre Note 28. 32 SINGH, P. K. HUMAN RIGHTS OF ACCUSED IN THE CRIMINAL PROCESS. Delhi: Swastik Publications. (2011). 33 Ibid. 34 Khatri v. State of Bihar, AIR 1981 SC 1068. 35 Hussnaira Khatoon v. State of Bihar, 1979 AIR 1369. 36 Ranjan Dwivedi v Central Board of Investigation, Writ Petition (Crl.) No. 200 OF 2011. 37 Supra Note 14.



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c. Presumption of innocence

It is a well-known fact that, there is always presumption of innocence in favour of the

accused in every criminal trial. The burden of proving the guilt of the accused is upon

the prosecution and unless it relieves itself of that burden, the courts cannot record a

finding of the guilt of the accused. This presumption is seen to flow from the Latin

legal principle eincumbit probatio qui dicit, non qui negat, that is, the burden of proof

rests on who asserts, not on who denies.

In State of U.P. v. Naresh and Ors38 the Supreme Court observed that, every accused

is presumed to be innocent unless his guilt is proved. The presumption of innocence is

a human right subject to the statutory exceptions. The said principle forms the basis of

criminal jurisprudence in India.

d. Independent & Impartial Judges

The basic principle of the right to a fair trial is that proceedings in any criminal case

are to be conducted by a competent, independent and impartial court. In a criminal

trial, as the state is the prosecuting party and the police is also an agency of the state,

it is important that the judiciary is unchained of all suspicion of executive influence

and control, direct or indirect.39

Fast track courts, as the reputation goes ignored the above two fundamental principles

of Natural Justice. There has been several allegations of misappropriating evidence

and falsification of the witnesses on the part of the state.40

e. The Government’s Arsenal

The Government generally respected the rights of its citizens; however, serious

problems remained. Major problems included extrajudicial killings of persons in

custody, disappearances, and torture and rape by police and other security forces.

Investigations into individual abuses and legal punishment for perpetrators occurred,

but for the majority of abuses, the lack of accountability created an atmosphere of

impunity. Officials used special antiterrorism legislation to justify the excessive use of

force.

38 State of U.P. v. Naresh and ors, CRIMINAL APPEAL NO.674 of 2006 39 Shyam Singh v. State of Rajasthan, 1973 Cri LJ 441, 443, (Raj.) 40 Kumar, N. (1997). Natural justice: Principle and practice. Delhi, India: Kanuni Salah Kendra.



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Since 1993, central and state governments have jointly funded Fast Track Courts,

which concentrate on a specific type of case, allowing judges to develop expertise in a

given area. Preference was given to cases pending for extended periods, and fees were

generally lower since trials were shorter. Most Fast Track cases were civil.41

As in previous years, courts were regularly in session in Jammu and Kashmir.

Nevertheless, the judicial system was hindered because of judicial tolerance of abuses

committed as part of the Government's counterinsurgency campaign and the frequent

refusal by security forces to obey court orders. Due in part to intimidation by

insurgents and terrorists, courts in Jammu and Kashmir often were reluctant to hear

cases involving insurgent and terrorist crimes and failed to act expeditiously, if at all,

on habeas corpus cases.

2) EMERGENCE OF FAST TRACK COURTS IN INDIA: THE SPEEDY TRIAL

SYSTEM

a. Speedy Trial: Why we need it?

The philosophy of Right to Speedy trial has grown in age but its goals are yet

unforeseen. Right to Speedy Trail is a concept which deals with disposal of cases as

soon as possible so as to make the Judiciary more efficient and trustworthy. The main

aim of Right to Speedy trial is to inculcate Justice in the society.42 It is the human life

that necessitates human rights. Being in a civilized society organized with law and a

system as such, it is essential to ensure for every citizen a reasonably dignified life.43

Thus every right is a human right as that helps a human to live like a human being.

The very basic purpose for which every state machinery sets up the court system is to

award justice to the victims of crimes. The constitution of India imposes heavy duty

on the judicial system for providing legal mechanism to deal with problem relating to

imparting justice.44

The setting up an independent judicial system, inclusion of fundamental rights and

directive principles of state polices further shows the commitment of our constitution

41 Singh, J. (1997). Right to speedy justice for undertrial prisoners. New Delhi: Deep & Deep Publications. 42 Hussainara Khatoon v. State of Bihar, 1979 AIR 1360, 1980 SCC (1) 81. 43 Katar Singh v. State of Punjab, 1994 SCC ﴾3﴿ 569, JT 1994 (2) 423, 1994 SCALE 1. 44 State of Maharashtra v Dr.Praful.B.Desai 2003 (3) SCALE 554.



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makers in making the judicial system an effective organ of state machinery on which

people can rely with trust and hope of justice.

b. Evolution of the system

The right to a speedy trial is first mentioned in that landmark document of English

law, the Magna Carta. Article 21 declares that “no person shall be deprived of his life

or personal liberty except according to the procedure laid by law.”45

Justice Krishna Iyer while dealing with the bail petition in Babu Singh v. State of

UP46, remarked, "Our justice system even in grave cases, suffers from slow motion

syndrome which is lethal to 'fair trial' whatever the ultimate decision. Speedy justice

is a component of social justice since the community, as a whole, is concerned in the

criminal being condignly and finally punished within a reasonable time and the

innocent being absolved from the inordinate ordeal of criminal proceedings." Right to

speedy trial is a concept gaining recognition and importance day by day.47

The right to a speedy trial is an ancient liberty. It is important to remember that during

the reign of Henry II (1154–1189), the English Crown promulgated the Assize of

Clarendon, a legal code comprised of 22 articles, one of which promised speedy

justice to all litigants.48 The Magna Charta, in 1215, prohibited the king from delaying

justice to any person in the realm. Several of the charters of the American colonies

protected the right to a speedy trial, as did most of the constitutions of the original 13

states. Ultimately, In U.S. in 1974, Congress enacted the Speedy Trial Act.49

Speedy trial is a fundamental right implicit in the guarantee of life and personal

liberty enshrined in Article 21 of the Constitution and any accused who is denied this

right of speedy trial is entitled to approach Supreme Court under Article 32 for the

purpose of enforcing such right and this Court in discharge of its constitutional

obligation has the power to give necessary directions to the State Governments and

other appropriate authorities for securing this right to the accused.50

45 Abdul Rahman Antulay v. R.S. Nayak, 1988 AIR 1531, 1988 SCR Supl. 1 46 Babu Singh v. State of UP, 1978 AIR 527 47M/S SIL Import, USA v M/S Exim Aides Silk Exporters AIR 1999 SC 1609 48 GEORGE EYRE AND ANDREW STRAHAN Great Britain.. AN ACT FOR THE MORE SPEEDY TRIAL. London: (1806)

Printed. 49 Speedy Trial Act, 18 U.S.C.A. §§ 3161 et seq. 50Babu Singh v. State of UP, 1978 AIR 527, 1978 SCC (1) 579.



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Yet, In India, nevertheless increasing numbers of accused were jumping bail while

free during extended pre-trial release, there is no such Act in India, however, the

Hon’ble Supreme Court held that right to speedy trial is neither a fact nor fiction but a

“Constitutional reality”.

c. The sluggish Indian Judicial system

It is a crying shame upon our adjudicatory system which keeps men in jail for years

on end without a trial. No one shall be allowed to be confined in jail for more than a

reasonable period of time, which we think cannot and should not exceed one year for

a session trial. We fail to understand why our justice system has become so

dehumanised that lawyers and judges do not feel a sense of revolt at caging people in

jail for years without trial.51

In Abdul Rehman Antulay vs R.S. Nayak, it was observed that ‘’Right to speedy trial is

not enumerated as one of the fundamental rights in the Constitution of India, unlike

the Sixth

Amendment to the U.S. Constitution which expressly recognises this right The Sixth

Amendment declares inter alia that ‘in all criminal prosecutions the accused shall

enjoy the right to a speedy and public trial’. This is in addition to the Fifth

Amendment which inter alia declares that “no person shall….be deprived of life”,

which corresponds broadly to Article 21.

3) IMPORTANCE OF SPEEDY JUSTICE

Although the importance of speedy disposal of cases was recognised as early as in the

year 1958 by the Law Commission of India in its 14th Report, in India, neither the

Constitution nor any existing laws or statutes specifically confer the right to speedy

trial on the accused.52 The Law Commission of India observed that in an organized

society, it is in the interest of the citizens as well as the state that the disputes which

go to the law courts for adjudication should be decided within a reasonable time, so as

to give certainty and definiteness to rights and obligations. If the course of trial is

51KadraPehadiya vs. State of Bihar,1981 Cr.L.J. 481 52 Majumdar, Nur Md. Abdullah Ahmed, and Ahsan Rashid. Right to Speedy Trial: Indian Judiciary and Justice

Delivery System. 2015.



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inordinately long, the chances of miscarriage of justice and the expenses of litigation

increase alike.53

The problem is much more acute in criminal cases, as compared to civil cases. Speedy

trial of a criminal case considered to be an essential future of right of a fair trial has

remained a distant reality. A procedure which does not provide trial and disposal

within a reasonable period cannot be said, to be just, fair and reasonable. If the

accused is acquitted after such long delay one can imagine the unnecessary suffering

he was subjected to. Delay results in witnesses being unable to testify correctly to

events which may have faded in their memory and sometimes in their being won over

by the opponent.54

Relief granted to an aggrieved party after a lapse of years loses much of its value and

sometimes becomes totally infructuous. Ansuyaben Kantilal Bhatt v. Rashiklal

Manilal Shah55 is an exemplary case of as to how delay is defeating the cause of

justice.

While the Constitution does have certain provisions regarding need for speedy justice,

there is no specific provision confirming justice as either a fundamental right or

constitutional right.”56

Here, the Fast-track courts have emerged as the harbinger of providing the much

needed relief to slow Indian judiciary and have helped in reducing the number of

pending cases to some extent.57

53Law Commission of India, 14th Report, 1958, Vol. 1, p. 129. 54 Great Britain. Justice at the Right Price: A Consultation Paper on a Costs Regime for the Fast Track.

[London]: [Lord Chancellors̓ Department], 1998. 55Ansuyaben Kantilal Bhatt v. Rashiklal Manilal Shah, (1997) 5 SCC 457. 56 Governance Knowledge Centre, Right to Justice soon to be a Fundamental Right, Retrieved from,

http://indiagovernance.gov.in/news.php?id=526, last seen on 20.3.2015. 57 Supra Note 52.



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VI CONCLUSION

Thus on close scrutiny when one reads the cases and analyses the criticisms it can

clearly be reflected that the trial by the courts and the inherent procedural

irregularities are only side of the coin the other side is even darker and that is of

'Investigation' where there are serious glitches by the Police. The investigative agency

has a great and one of the most important roles to play in the procedure of justice. The

trial that commences is solely based on the investigation that the prosecution brings to

the forefront which if flawed leads to falling apart of a sound and smooth trial. There

needs to be a timely and sufficient basis provided by the police and prosecution to

bring the whole picture of a case to a court and make the judge completely aware of

the facts and the course taken to ascertain the facts. This forms the basis of an inquiry

that a court conducts hence and then decides upon it.

The other issue which is surfaced is the witnesses turning hostile which again raises

an iota of doubt on the police agencies which have been ineffective providing

protection to the accused. Also the disappointing involvement of the government in

such cases is a big hurdle for the trial to be effectively conducted.

All this brings us to a conclusion that the blaming the court for its merits of holding a

trial does not mean we have caught hold the root of the problem rather it’s only an

aspect of the many causes. The Investigation, the witness and his or her protection and

the government presence also hold a major role. The story is as if the foundation has

been demolished how a building stand can, similarly if the investigation and the

elements crucial to trial have been swept away how can the trial of the court reach a

sound judgement and secure justice, as is desired of it.

While, there are many cons of the Fast-track court systems which we have discussed

in this paper in a case before the Apex Court, the Supreme Court bench, consisting of

the Chief Justice of India (CJI) Justice A.S. Anand, Justice R.C. Lahoti and Justice

Doraiswamy Raju, while hearing a case on legitimacy of Fast-track courts at district

levels and on the status of undertrials in various States, regretted that the scheme of

fast track courts, despite its crucial nature, was not brought to the notice of the CJI

before the government made an announcement in that regard. The Judges observed

that the funds released to the State governments to set up fast track courts should have



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been placed at the disposal of the Chief Justices of the High Courts, for proper

utilisation. "If you are going to build buildings, and then select Judges, the fast track

courts would become absolutely slow track," the Bench said.

The Bench observed that if the identification of the cases that the fast track courts

should try and the areas they should cover was left to the discretion of the Chief

Justices of the High Courts concerned the scheme would have worked better. The

Bench also wondered how retired District Judges could be recruited as presiding

officers and under whose jurisdiction they would be. Its critical observations have led

to dismay, as Law Ministry sources claimed that the draft of the scheme had been sent

to all States and the Chief Justices of all High Courts and it was introduced only after

effective consultation with the judiciary at every level. These sources also claimed

that only the Chief Justices of the High Courts would select Judges for appointment in

fast track courts.

Although the scheme envisages that its functional aspect be left to the judiciary, it

appears that the judiciary is not yet prepared to own responsibility for the scheme's

success. Justice Anand observed: "It is very easy to pass the buck. The government

first creates a mess and then requests the judiciary to clean it up.”

There are genuine fears that litigants wielding influence at the district level could

make use of the scheme in their favour to press for the expeditious disposal of cases

they are interested in, which sometimes would result in the miscarriage of justice. The

scheme leaves no scope for infusing fresh and young judicial talent, which is available

in plenty. It is pointed out that the scheme proposes to appoint the very same retired

Judges who had contributed to the creation of the huge backlog of cases.

There is no bar even under the present system to expedite the hearing of urgent cases

by evolving formal court procedures rather than leaving it to chance. In the existing

process decisions on applications for early hearing are routinely disposed of without

considering the implications of any delay for poor litigants.

It is highly probable that in the absence of a rational and sensible procedure to

facilitate the expeditious disposal of cases, the fast track courts would make no

difference to the huge backlog of cases.



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It was felt that the scheme of fast track courts would require a much smaller amount

but help clear the backlog to a substantial extent by the end of 2004-05. Whether the

scheme would really help address the larger issue of curtailing judicial delay in a big

way is, however, a moot point.



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VII BIBLIOGRAPHY

JOURNALS

All India Reporter

Supreme Court Cases

Supreme Court Reporter

All England Reporter

JStor

Heinonline

Social Science Research Network

ONLINE SOURCES

1) www.manupatrafast.in

2) www.indiacode.nic.in

3) www.supremecourtofindia.nic.in

Criminal Procedure Project

Documents

Transcript of Criminal Procedure Project