published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40619
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 100 OF 2010
Dharmendra Kirthal ... Petitioner
Versus
State of U.P. and another ... Respondents
J U D G M E N T
Dipak Misra, J.
In this writ petition preferred under Article 32 of the Constitution
of India, the petitioner who is undergoing trial before the learned Special
Judge, District Baghpat, U.P., has called in
question the constitutional
validity of number of provisions of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (Act 7 of 1986) (for short “theAct”) being violative of Articles 14, 21, 22(4) and 300A of theConstitution of India and further prayed for issue of a writ of certiorari for quashment of the First Information Report dated 2.5.2010 giving rise to Crime No. 100 of 2010 registered at Police Station Ramala, District Baghpat.
2. At the very outset, it is imperative to state that this Court, on 20th
September, 2010, while issuing notice, had passed the following order:
-
“Issue notice in regard to the validity of Section 12 of the U.P.
Gangster & Anti-Social Activities (Prevention) Act, 1986.”
Regard being had to the aforesaid, we shall only dwell upon and delve
into the constitutional validity of the section 12 of the Act.
3. It is necessary to state here that the validity of the Act was called
in question before the High Court of Judicature at Allahabad and a
Full Bench of the High Court in Ashok Kumar Dixit v. State of U.P. and
another[1] upheld the constitutional validity and dismissed the writ
petition. The assail to the constitutional validity travelled to this
Court in Subhash Yadav v. State of U.P. and another[2] and a two-Judge
Bench of this Court referred the matter to the Constitution Bench by
stating thus: -
“Heard learned counsel for the parties at some length.
We are informed that the question of vires of the Terrorist Affected
Areas (Special Courts Act) 1984, is pending before a Constitution
Bench. In the light of this, in our opinion, it would be proper that
these matters wherein the constitutional validity of U.P. Gangsters
and Anti Social Activities (Prevention) Act, 1986, is challenged,
should also be heard by the Constitution Bench.”
4. When the matter was listed before the Constitution Bench along with
connected matters, the larger Bench in Kartar Singh v. State of
Punjab[3] observed as follows: -
“Though originally, a number of other matters falling under various
Acts such as the U.P. Gangsters and Anti-social Activities
(Prevention) Act, 1986 (U.P. Act 7 of 1986), the Prevention of Illicit
Traffic of Narcotics Drugs and Psychotropic Substances Act, 1988 and
some provisions of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (COFEPOSA), were listed for hearing,
we have fully and conclusively heard only the matters pertaining to
the Act of 1984, Act of 1985 and Act of 1987 and U.P. Act 16 of 1976.”
5. Thus, the constitutional validity of the Act was not decided by the
said Constitution Bench. Thereafter, the matters relating to this Act
were placed before another Constitution Bench. The Court, in Subhash
Yadav v. State of U.P. and another[4], took note of the challenge and
the decision rendered in Ashok Kumar Dixit (supra) and observed thus:
-
“3. We had started hearing arguments in the writ petitions when the
matters remained part-heard. We have now been informed that Subhash
Yadav, petitioner in Writ Petition (Crl.) No. 317 of 1987 was
discharged by the trial court as early as on 3-4-1990 while Amar Mani
Tripathi, petitioner in Writ Petition (Crl.) No. 407 of 1987 was
acquitted by the trial court on 20-5-1992. Learned counsel for
Jitender, petitioner in Writ Petition (Crl.) No. 562 of 1987 submits
that despite numerous attempts made to contact the petitioner and find
out about the position of the criminal case against him, there is no
response. Learned counsel has, therefore, reported no instructions to
pursue the writ petition any further.
4. In view of the developments which have taken place by the
discharge of petitioner Subhash Yadav and acquittal of petitioner Amar
Mani Tripathi and no instructions having been reported on behalf of
petitioner Jitender, nothing survives for consideration in these writ
petitions, as the exercise to determine the constitutional validity of
the Act, would now be only of an academic interest insofar as these
cases are concerned. Writ Petitions (Crl.) Nos. 317 and 407 of 1987
are, therefore, dismissed as infructuous while Writ Petition (Crl.)
No. 562 of 1987 is dismissed for non-prosecution.”
6. In view of the aforesaid position, the constitutional validity of the
Act is still alive, but as a restricted notice was issued pertaining
only to the validity of Section 12 of the Act and the learned counsel
for the parties confined their submissions in that regard, we would,
as stated earlier, address ourselves singularly on that point. Be it
noted, Section 12 of the Act provides that the trial under the Act of
any offence by special court shall have precedence over the trial of
any other case against the accused in any other court and shall be
concluded in preference to the trial of such other case and
accordingly trial of such other case shall remain in abeyance.
7. We have heard Mr. D.K. Garg, learned counsel for the petitioner, and
Mr. Irshad Ahmad, learned Additional Advocate General for the State of
U.P.
8. Assailing the validity of the said provision, Mr. Garg, learned
counsel for the petitioner, has raised the following contentions: -
a) The provision frustrates the basic tenet of Article 21 of the
Constitution as has been interpreted by this Court to encapsulate in a
sacrosanct manner the concept of speedy and fair trial, for the trial
before the other courts are kept in abeyance and precedence is given to
the trial before the special courts under this Act as a consequence of
which the trial in other Court does not take place.
b) The precedence conferred on the cases before the special courts
tantamounts to illegal detention of an accused as he is deprived of his
liberty as the trial in other cases are not allowed to proceed and the
accused is compelled to languish in custody.
c) The detention which is virtually in the nature of a preventive detention
violates Article 22(4) of the Constitution.
d) The accused, who is tried by the special courts under this Act, is
treated differently because trial in other courts are kept in abeyance
whereas the accused tried by other courts gets the benefit of speedy
trial. There is no justification to treat the accused under this Act in
such a manner as it violates the equal treatment before the law as
envisaged under Article 14 of the Constitution.
9. Mr. Irshad Ahmad, learned Additional Advocate General for the State of
U.P., resisting the aforesaid proponements, contended as follows: -
i) The submission that the fundamental concept of speedy trial is
throttled and stifled is neither correct nor sustainable as, on the
contrary, the purpose of the legislature is to guarantee speedy trial
by providing the precedence of the trial under this Act over other
cases and keeping other cases before other courts in abeyance. From
the scanning of the scheme of the Act, the emphasis on speedy trial is
luminous and, hence, the ground urged on this score deserves to be
repelled.
ii) The liberty of the accused is not jeopardized but schematic canvas and
conceptual interpretation would reveal that the command of the
legislature is for speedy trial and further there are provisions for
grant of bail.
iii) The contention that it is in the nature of preventive detention has no
legs to stand upon as preventive detention and detention in connection
with the crime under the Act have different connotations altogether.
iv) The accused in other cases, who is not tried under this Act, stands on
a different footing altogether and such a classification is
permissible in the constitutional backdrop and, therefore, it does not
invite the frown of Article 14 of the Constitution.
10. To appreciate the rival submissions raised at the Bar in their proper
perspective, we think it seemly to refer to the Statement of Objects
and reasons of the Act which is as follows: -
“Gangsterism and anti-social activities were on the increase in the
State posing threat to lives and properties of the citizens. The
existing measures were not found effective enough to cope with this
new menace. With a view to break the gangs by punishing the gangsters
and to nip in the bud their conspiratoral designs it was considered
necessary to make special provisions for the prevention of, and for
coping with gangsters and anti-social activities in the State.
Since the State Legislature was not in session and immediate
legislative action in the matter was necessary, the Uttar Pradesh
Gangsters and Anti-social Activities (Prevention) Ordinance 1986 (U.P.
Ordinance No. 4 of 1986) was promulgated by the Governor on January
15, 1986, after obtaining prior instructions of the President.
The Uttar Pradesh Gangsters and Antisocial Activities (Prevention)
Bill, 1986 is accordingly introduced with certain necessary
modifications to replace the aforesaid Ordinance.”
11. The Preamble of the Act reads as follows: -
“An Act to make special provisions for the prevention of, and for
coping with gangsters and anti-social activities and for matters
connected therewith or incidental thereto.”
12. Reference to the Statement of Objects and Reasons and the Preamble of
the Act is meant to appreciate the background and purpose of the
legislation. In this context we may refer with profit to the dictum
in Gujarat University and another v. Shri Krishna Ranganath Mudholkar
and others[5], where the majority observed as follows: -
“Statements of Objects and Reasons of a Statute may and do often
furnish valuable historical material in ascertaining the reasons which
induced the Legislature to enact a Statute, but in interpreting the
Statute they must be ignored.”
13. In Shashikant Laxman Kale and another v. Union of India and
another[6], a three-Judge Bench of this Court has expressed: -
“For determining the purpose or object of the legislation, it is
permissible to look into the circumstances which prevailed at the time
when the law was passed and which necessitated the passing of that
law. For the limited purpose of appreciating the background and the
antecedent factual matrix leading to the legislation, it is
permissible to look into the Statement of Objects and Reasons of the
Bill which actuated the step to provide a remedy for the then existing
malady.”
14. In New India Assurance Co. Ltd. v. Asha Rani and others[7], the Court
referred to the Statement of Objects and Reasons of the Motor Vehicles
Amendment Act, 1994 to understand the purpose behind the legislation.
15. The Statement of Objects and Reasons and Preamble make it quite clear
that the Legislature felt the compulsion to make special provisions
against gangsterism and anti-social activities. While speaking about
terrorism, the majority in Kartar Singh (supra) opined that it is much
more rather a grave emergent situation created either by external
forces particularly at the frontiers of this country or by anti-
nationals throwing a challenge to the very existence and sovereignty
of the country in its democratic polity. The learned Judges put it on
a higher plane than public order disturbing the “even tempo of the
life of community of any specified locality” as has been stated by
Hidayatullah, C.J., in Arun Ghosh v. State of West Bengal[8].
16. The present Act deals with gangs and gangsters to prevent organized
crime. Section 2 of the Act is the dictionary clause. Section 2(b)
defines the term “gang” and we think it apt to quote the relevant part
which is as follows: -
““Gang” means a group of persons, who acting either singly or
collectively, by violence, or threat or show of violence, or
intimidation, or coercion or otherwise with the object of disturbing
public order or of gaining any undue temporal, pecuniary, material or
other advantage for himself or any other person, indulge in anti-
social activities”
After so defining, the legislature has stipulated the offences which
are punishable under the Act, but they need not be referred to.
17. The term “gangster” has been defined under Section 2(c) which is as
follows: -
““gangster” means a member or leader or organizer of a gang and
includes any person who abets or assists in the activities of a gang
enumerated in clause (b), whether before or after the commission of
such activities or harbours any person who has indulged in such
activities.”
18. Section 3 of the Act deals with penalty. It is apt to reproduce the
same : -
“3. Penalty. – (1) A gangster, shall be punished with imprisonment of
either description for a term which shall not be less than two years
and which may extend to ten years and also with fine which shall not
be less than five thousand rupees:
Provided that a gangster who commits an offence against the
person of a public servant or the person of a member of the family of
a public servant shall be punished with imprisonment of either
description for a term which shall not be less than three years and
also with fine which shall not be less than five thousand rupees.
(2) Whoever being a public servant renders any illegal help or
support in any manner to a gangster, whether before or after the
commission of any offence by the gangster (whether by himself or
through others) or abstains from taking lawful measures or
intentionally avoids to carry out the directions of any Court or of
his superior officers, in this respect, shall be punished with
imprisonment of either description for a term which may extend to ten
years but shall not be less than three years and also with fine.”
19. Section 5 of the Act deals with Special Courts and Section 5(1)
provides that for the interest of speedy trial of offences under this
Act, the State Government may, if it considers necessary, constitute
one or more special courts. Section 7 deals with the jurisdiction of
the Special Courts. Section 7(1) provides that notwithstanding
anything contained in the Code, where a Special Court has been
constituted for any local area, every offence punishable under any
provision of this Act or any rule made thereunder shall be triable
only by the Special Court within whose local jurisdiction it was
committed, whether before or after the constitution of such Special
Court. Sub-section (2) of Section 7 lays the postulate that all cases
triable by a Special Court, which immediately before the constitution
of such Special Court were pending before any court, shall on creation
of such Special Court having jurisdiction over such cases, stand
transferred to it.
20. Section 8 deals with the power of Special Courts with respect to other
offences which reads as follows: -
“8. Power of Special Courts with respect to other offences. – (1) When
trying any offence punishable under this Act a Special Court may also
try any other offence with which the accused may, under any other law
for the time being in force, be charged at the same trial.
(2) If in the course of any trial under this Act of any offence, it
is found that the accused has committed any other offence under this
Act or any rule thereunder or under any other law, the Special Court
may convict such person of such other offence and pass any sentence
authorised by this Act or such rule or, as the case may be, such other
law, for the punishment thereof.”
21. Section 10 provides the procedure and powers of Special Courts and
Section 11 provides for protection of witnesses. Section 12, the
validity of which is under attack, is as follows: -
“12. Trial by Special Courts to have precedence. – The trial under
this Act of any offence by Special Court shall have precedence over
the trial of any other case against the accused in any other Court
(not being a Special Court) and shall be concluded in preference to
the trial of such other case and accordingly the trial of such other
case shall remain in abeyance.”
22. At this juncture, we may profitably recapitulate that it is the duty
of the Court to uphold the constitutional validity of a statute and
that there is always the presumption in favour of the
constitutionality of an enactment. In this context, we may fruitfully
refer to the decision in Charanjit Lal Chowdhury v. The Union of India
and others[9] wherein it has been ruled thus: -
“It is the accepted doctrine of American Courts, which I consider to
be well founded on principle, that the presumption is always in favour
of the constitutionality of an enactment, and the burden is upon him
who attacks it to show that there has been a clear transgression of
the constitutional principles.”
23. In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and others[10],
this Court had ruled that there is always a presumption in favour of
the constitutionality of an enactment and the burden is on him who
challenges the same to show that there has been a clear transgression
of the constitutional principles and it is the duty of the Court to
sustain that there is a presumption of constitutionality and in doing
so, the Court may take into consideration matters of common knowledge,
matters of common report, the history of the times and may assume
every state of facts which can be conceived existing at the time of
the legislations.
24. In State of Bihar and others v. Bihar Distillery Limited[11], the said
principle was reiterated.
25. In Burrakur Coal Co. Ltd. v. Union of India[12], Mudholkar, J.,
speaking for the Constitution Bench, observed: -
“Where the validity of a law made by a competent legislature is
challenged in a court of law, that court is bound to presume in favour
of its validity. Further, while considering the validity of the law
the court will not consider itself restricted to the pleadings of the
State and would be free to satisfy itself whether under any provision
of the Constitution the law can be sustained.”
26. In Pathumma and others v. State of Kerala and others[13], the seven-
Judge Bench has opined thus: -
“The judicial approach should be dynamic rather than static, pragmatic
and not pedantic and elastic rather than rigid. It must take into
consideration the changing trends of economic thought, the temper of
the times and the living aspirations and feelings of the people. This
Court while acting as a sentinel on the qui vive to protect
fundamental rights guaranteed to the citizens of the country must try
to strike a just balance between the fundamental rights and the larger
and broader interests of society, so that when such a right clashes
with the larger interest of the country it must yield to the latter.”
Again in the said judgment, it has been ruled thus: -
“It is obvious that the Legislature is in the best position to
understand and appreciate the needs of the people as enjoined by the
Constitution to bring about social reforms for the upliftment of the
backward and the weaker sections of the society and for the
improvement of the lot of poor people. The Court will, therefore,
interfere in this process only when the statute is clearly violative
of the right conferred on the citizen under Part III of the
Constitution or when the Act is beyond the legislative competence of
the legislature or such other grounds.”
27. The said principles have been reiterated by the majority in another
Constitution Bench in State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat and others[14].
28. At this juncture, we think it condign to sit in a time machine and
refer to the opinion expressed by Krishna Iyer, J., in R.S. Joshi,
Sales Tax Officer, Gujarat and others v. Ajit Mills Limited and
another[15]: -
“A prefatory caveat. When examining a legislation from the angle of
its vires, the Court has to be resilient, not rigid, forward-looking,
not static, liberal, not verbal – in interpreting the organic law of
the nation. We must also remember the constitutional proposition
enunciated by the U.S. Supreme Court in Munn v. Illinois[16] viz.,
‘that courts do not substitute their social and economic beliefs for
the judgment of legislative bodies’. Moreover, while trespasses will
not be forgiven, a presumption of constitutionality must colour
judicial construction. These factors, recognized by our Court, are
essential to the modus vivendi between the judicial and legislative
branches of the State, both working beneath the canopy of the
Constitution.”
29. We have referred to the aforesaid authorities for the sanguine reason
that the submissions raised at the Bar are to be considered in the
backdrop of the aforesaid “caveat”. The “Modus Vivendi” which needs a
purposive and constructive ratiocination while engaged in the
viceration of the provision, which draws its strength and stimulus in
its variations from the Constitution, we have to see whether the
provision trespasses the quintessential characteristics of the Organic
Law and, therefore, should not be allowed to stand.
30. Keeping the aforesaid enunciation in view, we shall presently proceed
to deal with the stand and stance of both the sides. The first
submission which pertains to the denial of speedy trial has been
interpreted to be a facet of Article 21 of the Constitution. In
Kartar Singh (supra), the majority, speaking through Pandian,J., has
expressed thus: -
“85. The right to a speedy trial is not only an important safeguard to
prevent undue and oppressive incarceration, to minimise anxiety and
concern accompanying the accusation and to limit the possibility of
impairing the ability of an accused to defend himself but also there
is a societal interest in providing a speedy trial. This right has
been actuated in the recent past and the courts have laid down a
series of decisions opening up new vistas of fundamental rights. In
fact, lot of cases are coming before the courts for quashing of
proceedings on the ground of inordinate and undue delay stating that
the invocation of this right even need not await formal indictment or
charge.
86. The concept of speedy trial is read into Article 21 as an
essential part of the fundamental right to life and liberty guaranteed
and preserved under our Constitution. The right to speedy trial begins
with the actual restraint imposed by arrest and consequent
incarceration and continues at all stages, namely, the stage of
investigation, inquiry, trial, appeal and revision so that any
possible prejudice that may result from impermissible and avoidable
delay from the time of the commission of the offence till it
consummates into a finality, can be averted. In this context, it may
be noted that the constitutional guarantee of speedy trial is properly
reflected in Section 309 of the Code of Criminal Procedure.”
31. Be it noted, the Court also referred to the pronouncements in
Hussainara Khatoon (I) v. Home Secretary, State of Bihar[17], Sunil
Batra v. Delhi Administration (I)[18], Hussainara Khatoon (IV) v. Home
Secretary, State of Bihar, Patna[19], Hussainara Khatoon (VI) v. Home
Secretary, State of Bihar, Govt. of Bihar, Patna[20], Kadra Pahadia v.
State of Bihar (II)[21], T.V. Vatheeswaran v. State of T.N.[22], and
Abdul Rehman Antulay v. R.S. Nayak[23].
32. The present provision is to be tested on the touchstone of the
aforesaid constitutional principle. The provision clearly mandates
that the trial under this Act of any offence by the Special Court
shall have precedence and shall be concluded in preference to the
trial of such other courts to achieve the said purpose. The
legislature thought it appropriate to provide that the trial of such
other case shall remain in abeyance. It is apt to note here that “any
other case” against the accused in “any other court” does not include
the Special Court. The emphasis is on speedy trial and not denial of
it. The legislature has incorporated such a provision so that an
accused does not face trial in two cases simultaneously and a case
before the Special Court does not linger owing to clash of dates in
trial. It is also worthy to note that the Special Court has been
conferred jurisdiction under sub-section (1) of Section 8 of the Act
to try any other offences with which the accused may, under any other
law for the time being in force, have been charged and proceeded at
the same trial.
33. As far as fair trial is concerned, needless to emphasise, it is an
integral part of the very soul of Article 21 of the Constitution.
Fair trial is the quintessentiality of apposite dispensation of
criminal justice. In Zahira Habibulla H. Sheikh and another v. State
of Gujarat and others[24], it has been held as follows: -
“33. The principle of fair trial now informs and energises many areas
of the law. It is reflected in numerous rules and practices. It is a
constant, ongoing development process continually adapted to new and
changing circumstances, and exigencies of the situation—peculiar at
times and related to the nature of crime, persons involved—directly or
operating behind, social impact and societal needs and even so many
powerful balancing factors which may come in the way of administration
of criminal justice system.”
In the said case, emphasis was laid on the triangulation of the
interest of the accused, the victim and the society and stress was further
laid on the fact that it is the community that acts through the State and
the prosecuting agencies and the interests of the society are not to be
treated completely with disdain and as persona non grata. In paragraphs 39
and 40 of the said judgment, it has been ruled thus: -
“39. Failure to accord fair hearing either to the accused or the
prosecution violates even minimum standards of due process of law. It
is inherent in the concept of due process of law, that condemnation
should be rendered only after the trial in which the hearing is a real
one, not sham or a mere farce and pretence. Since the fair hearing
requires an opportunity to preserve the process, it may be vitiated
and violated by an overhasty, stage-managed, tailored and partisan
trial.
40. The fair trial for a criminal offence consists not only in
technical observance of the frame and forms of law, but also in
recognition and just application of its principles in substance, to
find out the truth and prevent miscarriage of justice.”
34. In Mohd. Hussain alias Julfikar Ali v. State (Government of NCT of
Delhi)[25], this Court observed that “speedy trial” and “fair trial”
to a person accused of a crime are integral part of Article 21. There
is, however, qualitative difference between the right to speedy trial
and the right of the accused to fair trial. Unlike the right of the
accused to fair trial, deprivation of the right to speedy trial does
not per se prejudice the accused in defending himself.
35. Same principle was reiterated in Niranjan Hemchandra Sashittal and
another v. State of Maharashtra[26].
36. On a careful scrutiny of the provision, it is quite vivid that the
trial is not hampered as the trial in other courts is to remain in
abeyance by the legislative command. Thus, the question of
procrastination of trial does not arise. As the trial under the Act
would be in progress, the accused would have the fullest opportunity
to defend himself and there cannot be denial of fair trial. Thus, in
our considered opinion, the aforesaid provision does not frustrate the
concept of fair and speedy trial which are the imperative facets of
Article 21 of the Constitution.
37. The next limb of attack pertains to scuttling of liberty of the person
who is made an accused for an offence under the Act. There can never
be any shadow of doubt that sans liberty, the human dignity is likely
to be comatosed. The liberty of an individual cannot be allowed to
live on the support of a ventilator. Long back in the glory of
liberty, Henry Patrick, had to say this: -
“Is life so dear, or peace so sweet as to be purchased at the price of
chains and slavery? – Forbid it, Almighty God! – I know not what
course others may take, but, as for me, give me liberty or give me
death.[27]”
38. When the liberty of an individual is atrophied, there is a feeling of
winter of discontent. Personal liberty has its own glory and is to be
put on a pedestal in trial to try offenders, it is controlled by the
concept of “rational liberty”. In essence, liberty of an individual
should not be allowed to be eroded but every individual has an
obligation to see that he does not violate the laws of the land or
affect others’ lawful liberty to lose his own. The cry of liberty is
not to be confused with or misunderstood as unconcerned senile shout
for freedom. It may be apt to add here that the protection of the
collective is the bone marrow and that is why liberty in a civilized
society cannot be absolute. It is the duty of the courts to uphold
the dignity of personal liberty. It is also the duty of the court to
see whether the individual crosses the “Lakshman Rekha” that is carved
out by law is dealt with appropriately. In this context, we may
profitably reproduce a passage from the judgment in Ash Mohammad v.
Shiv Raj Singh alias Lalla Babu and another[28]: -
“17. We are absolutely conscious that liberty of a person should not
be lightly dealt with, for deprivation of liberty of a person has
immense impact on the mind of a person. Incarceration creates a
concavity in the personality of an individual. Sometimes it causes a
sense of vacuum. Needless to emphasise, the sacrosanctity of liberty
is paramount in a civilised society. However, in a democratic body
polity which is wedded to the rule of law an individual is expected to
grow within the social restrictions sanctioned by law. The individual
liberty is restricted by larger social interest and its deprivation
must have due sanction of law. In an orderly society an individual is
expected to live with dignity having respect for law and also giving
due respect to others’ rights. It is a well-accepted principle that
the concept of liberty is not in the realm of absolutism but is a
restricted one. The cry of the collective for justice, its desire for
peace and harmony and its necessity for security cannot be allowed to
be trivialised. The life of an individual living in a society governed
by the rule of law has to be regulated and such regulations which are
the source in law subserve the social balance and function as a
significant instrument for protection of human rights and security of
the collective. It is because fundamentally laws are made for their
obedience so that every member of the society lives peacefully in a
society to achieve his individual as well as social interest. That is
why Edmond Burke while discussing about liberty opined, “it is
regulated freedom”.
39. From the aforesaid, it is quite clear that no individual has any
right to hazard others’ liberty. The body polity governed by Rule of law
does not permit anti-social acts that lead to a disorderly society. Keeping
the aforesaid perspective in view, the submission of the learned counsel
for the petitioner and the argument advanced in oppugnation by the learned
counsel for the respondent are to be appreciated. It is urged that an
accused tried under this Act suffers detention as the trial in other cases
are not allowed to proceed. As far as other cases are concerned, there is
no prohibition to move an application taking recourse to the appropriate
provision under the Code of Criminal Procedure for grant of bail. What is
stipulated under Section 12 of the Act is that the trial in other case is
to be kept in abeyance. Special courts have been conferred with the power
to try any other offence with which the accused under the Act is charged at
the same trial. Quite apart from the above, the Act empowers the special
courts to grant bail to an accused under the Act though the provision is
rigorous. Sections 19(4) and 19(5) deal with the same. They are as
follows: -
“19. Modified application of certain provisions of the Code –
(4) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under this Act or any rule made
thereunder shall, if in custody, be released on bail or on his own
bond unless:
(a) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
(b) where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing
that he is not guilty of such offence and that he is not likely
to commit any offence while on bail.
(5) The limitations on granting of bail specified in sub-section (4)
are in addition to the limitations under the Code.”
40. The said provisions are akin to the provisions contained in Section
37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
41. The provision under Section 37 of the NDPS Act, though lays
conditions precedent and they are in addition to what has been stipulated
in the Code of Criminal Procedure, yet there is no deprivation of liberty.
Be it noted, a more stringent provision is contained in MCOCA under Section
21 (5). It reads as under:-
“21(5) Notwithstanding anything contained in the Code, the accused
shall not be granted bail if it is noticed by the court that he was on
bail in an offence under this Act, or under any other Act, on the date
of the offence in question.”
A three-Judge Bench in State of Maharashtra v. Bharat Shanti Lal Shah
and Others[29] dealing with said facet has opined thus:-
“63. As discussed above the object of MCOCA is to prevent the
organized crime and, therefore, there could be reason to deny
consideration of grant of bail if one has committed a similar offence
once again after being released on bail but the same consideration
cannot be extended to a person who commits an offence under some other
Act, for commission of an offence under some other Act would not be in
any case in consonance with the object of the Act which is enacted in
order to prevent only organized crime.”
Thereafter, the learned judges observed that the expression “or under any
other Act” in the provision being discriminatory was violative of Articles
14 and 21 of the Constitution. Such a provision is absent in Section 19 of
the Act. Thus, there being a provision for grant of bail, though
restricted, we are disposed to think that the contention that the accused
is compelled to languish in custody because of detention under the Act does
not deserve acceptation and is, accordingly, negatived.
42. The next submission of the learned counsel is that it is in the nature
of preventive detention as is understood under Article 22(4) of the
Constitution of India. The said contention is to be taken note of only
to be rejected, for the concept of preventive detention is not even
remotely attracted to the arrest and detention for an offence under the
Act.
43. The next proponement, as noted, pertains to the violation of the
equality clause as enshrined under Article 14 of the Constitution. Mr.
Garg has endeavoured to impress upon us that the accused who is only
tried by other courts gets the benefit of speedy trial whereas the
accused tried under this Act has to suffer because trial in other courts
are kept in abeyance. We have already expressed our view that the
concept of speedy and fair trial is neither smothered nor scuttled when
the trial in other courts are kept in abeyance. As far as Article 14 is
concerned, we do not perceive that the procedure provided in the Act
tantamounts to denial of fundamental fairness in trial. It does not
really shock the judicial conscience and by no stretch of imagination,
it can be said to be an anathema to the sense of justice. It is neither
unfair nor arbitrary. It is apposite to note here that there is a
distinction between an accused who faces trial in other courts and the
accused in the special courts because the accused herein is tried by the
Special Court as he is a gangster as defined under Section 2(c) of the
Act and is involved in anti-social activities with the object of
disturbing public order or of gaining any undue temporal, pecuniary,
material or other advantage for himself or any other person.
44. It is a crime of a different nature. Apart from normal criminality,
the accused is also involved in organized crime for a different purpose
and motive. The accused persons under the Act belong to altogether a
different category. The legislature has felt that they are to be dealt
with in a different manner and, accordingly, the trial is mandated to be
held by the special courts in an expeditious manner. The intention of
the legislature is to curb such kind of organized crimes which have
become epidemic in the society. In Kartar Singh (supra), the majority
has said, “Legislation begins where Evil begins”. The legislature, as
it seems to us, being guided by its sacrosanct duty to protect the
individual members of society to enjoy their rights without fear and see
that some people do not become a menace to the society in a singular or
collective manner, has enacted such a provision. In this context, we
may refer with profit to the authority in The Works Manager, Central
Railway Workshop, Jhansi v. Vishwanath and others[30], wherein a three-
Judge Bench, though in a different context, has observed that certain
types of enactments are more responsive to some urgent social demands
and also have more immediate and visible impact on social vices by
operating more directly to achieve social reforms. We have referred to
the said observations only to highlight how the legislature in a welfare
State immediately steps in for social reforms to eradicate social vices.
Similarly, sometimes it is compelled to take steps to control the
frenzied criminal action of some anti-social people. In the case at
hand it can be stated with certitude that the legislature has felt that
there should be curtailment of the activities of the gangsters and,
accordingly, provided for stern delineation with such activities to
establish stability in society where citizens can live in peace and
enjoy a secured life. It has to be kept uppermost in mind that control
of crime by making appropriate legislation is the most important duty of
the legislature in a democratic polity, for it is necessary to scuttle
serious threats to the safety of the citizens. Therefore, the
legislature has, in actuality, responded to the actual feelings and
requirements of the collective.
45. Thus, the accused under the Act is in a distinct category and the differentiation between the two, namely, a person arrayed as an accused in respect of offences under other Acts and an accused under the Act is a rational one. It cannot be said to be arbitrary. It does not defeat the concept of permissible classification.
The majority in Kartar Singh (supra) has expressed thus: -
“218. The principle of legislative classification is an accepted principle where under persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction.
The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.”
46. Tested on the touchstone of the abovestated principles, the
irresistible conclusion is that the classification is in the permissible
realm of Article 14 of the Constitution. Therefore, the submission that
Section 12 invites the wrath of Article 14 of the Constitution is sans
substratum and, accordingly, we have no hesitation in repelling the same
and we so do.
47. In view of the aforesaid analysis, we uphold the constitutional
validity of Section 12 of the Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 as it does not infringe any of the
facets of Articles 14 and 21 of the Constitution of India. Ex-
consequenti, the writ petition, being devoid of merit, stands dismissed.
..…………………………….J.
[H.L. Gokhale]
….………………………….J.
[Dipak Misra]
New Delhi;
August 02, 2013
-----------------------
[1] AIR 1987 All 235
[2] Writ Petition (Crl.) No. 317 of 1987 dt. 9.12.1987
[3] (1994) 3 SCC 569
[4] (2000) 10 SCC 145
[5] AIR 1963 SC 703
[6] AIR 1990 SC 2114
[7] (2003) 2 SCC 223
[8] (1970) 1 SCC 98
[9] AIR 1951 SC 41
[10] AIR 1958 SC 538
[11] AIR 1997 SC 1511
[12] AIR 1961 SC 954
[13] (1978) 2 SCC 1
[14] (2005) 8 SCC 534
[15] (1977) 4 SCC 98
[16] (1876) 94 US 113 (quoted in Labor Board v. Jones & Laughlin, 391 US
1, 33-34-Corwin, Constitution of the USA, Introduction, p. XXXI)
[17] (1980) 1 SCC 81
[18] (1978) 4 SCC 494
[19] (1980) 1 SCC 98
[20] (1980) 1 SCC 115
[21] (1983) 2 SCC 104
[22] (1983) 2 SCC 68
[23] (1992) 1 SCC 225
[24] (2004) 4 SCC 158
[25] (2012) 9 SCC 408
[26] (2013) 4 SCC 642
[27] HENRY, Patrick, Speech in the Virginia Revoluntionary Council,
Richmond, 1175 in Henry, William Writ, Patrick Henry: Life Correspondence
and Speeches (New York: Charles Scribner’s Sons, 1891), Vol. 1, p.268.
[28] (2012) 9 SCC 446
[29] (2008) 13 SCC 5
[30] (1969) 3 SCC 95
-----------------------
30
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 100 OF 2010
Dharmendra Kirthal ... Petitioner
Versus
State of U.P. and another ... Respondents
J U D G M E N T
Dipak Misra, J.
In this writ petition preferred under Article 32 of the Constitution
of India, the petitioner who is undergoing trial before the learned Special
Judge, District Baghpat, U.P., has called in
question the constitutional
validity of number of provisions of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (Act 7 of 1986) (for short “theAct”) being violative of Articles 14, 21, 22(4) and 300A of theConstitution of India and further prayed for issue of a writ of certiorari for quashment of the First Information Report dated 2.5.2010 giving rise to Crime No. 100 of 2010 registered at Police Station Ramala, District Baghpat.
2. At the very outset, it is imperative to state that this Court, on 20th
September, 2010, while issuing notice, had passed the following order:
-
“Issue notice in regard to the validity of Section 12 of the U.P.
Gangster & Anti-Social Activities (Prevention) Act, 1986.”
Regard being had to the aforesaid, we shall only dwell upon and delve
into the constitutional validity of the section 12 of the Act.
3. It is necessary to state here that the validity of the Act was called
in question before the High Court of Judicature at Allahabad and a
Full Bench of the High Court in Ashok Kumar Dixit v. State of U.P. and
another[1] upheld the constitutional validity and dismissed the writ
petition. The assail to the constitutional validity travelled to this
Court in Subhash Yadav v. State of U.P. and another[2] and a two-Judge
Bench of this Court referred the matter to the Constitution Bench by
stating thus: -
“Heard learned counsel for the parties at some length.
We are informed that the question of vires of the Terrorist Affected
Areas (Special Courts Act) 1984, is pending before a Constitution
Bench. In the light of this, in our opinion, it would be proper that
these matters wherein the constitutional validity of U.P. Gangsters
and Anti Social Activities (Prevention) Act, 1986, is challenged,
should also be heard by the Constitution Bench.”
4. When the matter was listed before the Constitution Bench along with
connected matters, the larger Bench in Kartar Singh v. State of
Punjab[3] observed as follows: -
“Though originally, a number of other matters falling under various
Acts such as the U.P. Gangsters and Anti-social Activities
(Prevention) Act, 1986 (U.P. Act 7 of 1986), the Prevention of Illicit
Traffic of Narcotics Drugs and Psychotropic Substances Act, 1988 and
some provisions of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (COFEPOSA), were listed for hearing,
we have fully and conclusively heard only the matters pertaining to
the Act of 1984, Act of 1985 and Act of 1987 and U.P. Act 16 of 1976.”
5. Thus, the constitutional validity of the Act was not decided by the
said Constitution Bench. Thereafter, the matters relating to this Act
were placed before another Constitution Bench. The Court, in Subhash
Yadav v. State of U.P. and another[4], took note of the challenge and
the decision rendered in Ashok Kumar Dixit (supra) and observed thus:
-
“3. We had started hearing arguments in the writ petitions when the
matters remained part-heard. We have now been informed that Subhash
Yadav, petitioner in Writ Petition (Crl.) No. 317 of 1987 was
discharged by the trial court as early as on 3-4-1990 while Amar Mani
Tripathi, petitioner in Writ Petition (Crl.) No. 407 of 1987 was
acquitted by the trial court on 20-5-1992. Learned counsel for
Jitender, petitioner in Writ Petition (Crl.) No. 562 of 1987 submits
that despite numerous attempts made to contact the petitioner and find
out about the position of the criminal case against him, there is no
response. Learned counsel has, therefore, reported no instructions to
pursue the writ petition any further.
4. In view of the developments which have taken place by the
discharge of petitioner Subhash Yadav and acquittal of petitioner Amar
Mani Tripathi and no instructions having been reported on behalf of
petitioner Jitender, nothing survives for consideration in these writ
petitions, as the exercise to determine the constitutional validity of
the Act, would now be only of an academic interest insofar as these
cases are concerned. Writ Petitions (Crl.) Nos. 317 and 407 of 1987
are, therefore, dismissed as infructuous while Writ Petition (Crl.)
No. 562 of 1987 is dismissed for non-prosecution.”
6. In view of the aforesaid position, the constitutional validity of the
Act is still alive, but as a restricted notice was issued pertaining
only to the validity of Section 12 of the Act and the learned counsel
for the parties confined their submissions in that regard, we would,
as stated earlier, address ourselves singularly on that point. Be it
noted, Section 12 of the Act provides that the trial under the Act of
any offence by special court shall have precedence over the trial of
any other case against the accused in any other court and shall be
concluded in preference to the trial of such other case and
accordingly trial of such other case shall remain in abeyance.
7. We have heard Mr. D.K. Garg, learned counsel for the petitioner, and
Mr. Irshad Ahmad, learned Additional Advocate General for the State of
U.P.
8. Assailing the validity of the said provision, Mr. Garg, learned
counsel for the petitioner, has raised the following contentions: -
a) The provision frustrates the basic tenet of Article 21 of the
Constitution as has been interpreted by this Court to encapsulate in a
sacrosanct manner the concept of speedy and fair trial, for the trial
before the other courts are kept in abeyance and precedence is given to
the trial before the special courts under this Act as a consequence of
which the trial in other Court does not take place.
b) The precedence conferred on the cases before the special courts
tantamounts to illegal detention of an accused as he is deprived of his
liberty as the trial in other cases are not allowed to proceed and the
accused is compelled to languish in custody.
c) The detention which is virtually in the nature of a preventive detention
violates Article 22(4) of the Constitution.
d) The accused, who is tried by the special courts under this Act, is
treated differently because trial in other courts are kept in abeyance
whereas the accused tried by other courts gets the benefit of speedy
trial. There is no justification to treat the accused under this Act in
such a manner as it violates the equal treatment before the law as
envisaged under Article 14 of the Constitution.
9. Mr. Irshad Ahmad, learned Additional Advocate General for the State of
U.P., resisting the aforesaid proponements, contended as follows: -
i) The submission that the fundamental concept of speedy trial is
throttled and stifled is neither correct nor sustainable as, on the
contrary, the purpose of the legislature is to guarantee speedy trial
by providing the precedence of the trial under this Act over other
cases and keeping other cases before other courts in abeyance. From
the scanning of the scheme of the Act, the emphasis on speedy trial is
luminous and, hence, the ground urged on this score deserves to be
repelled.
ii) The liberty of the accused is not jeopardized but schematic canvas and
conceptual interpretation would reveal that the command of the
legislature is for speedy trial and further there are provisions for
grant of bail.
iii) The contention that it is in the nature of preventive detention has no
legs to stand upon as preventive detention and detention in connection
with the crime under the Act have different connotations altogether.
iv) The accused in other cases, who is not tried under this Act, stands on
a different footing altogether and such a classification is
permissible in the constitutional backdrop and, therefore, it does not
invite the frown of Article 14 of the Constitution.
10. To appreciate the rival submissions raised at the Bar in their proper
perspective, we think it seemly to refer to the Statement of Objects
and reasons of the Act which is as follows: -
“Gangsterism and anti-social activities were on the increase in the
State posing threat to lives and properties of the citizens. The
existing measures were not found effective enough to cope with this
new menace. With a view to break the gangs by punishing the gangsters
and to nip in the bud their conspiratoral designs it was considered
necessary to make special provisions for the prevention of, and for
coping with gangsters and anti-social activities in the State.
Since the State Legislature was not in session and immediate
legislative action in the matter was necessary, the Uttar Pradesh
Gangsters and Anti-social Activities (Prevention) Ordinance 1986 (U.P.
Ordinance No. 4 of 1986) was promulgated by the Governor on January
15, 1986, after obtaining prior instructions of the President.
The Uttar Pradesh Gangsters and Antisocial Activities (Prevention)
Bill, 1986 is accordingly introduced with certain necessary
modifications to replace the aforesaid Ordinance.”
11. The Preamble of the Act reads as follows: -
“An Act to make special provisions for the prevention of, and for
coping with gangsters and anti-social activities and for matters
connected therewith or incidental thereto.”
12. Reference to the Statement of Objects and Reasons and the Preamble of
the Act is meant to appreciate the background and purpose of the
legislation. In this context we may refer with profit to the dictum
in Gujarat University and another v. Shri Krishna Ranganath Mudholkar
and others[5], where the majority observed as follows: -
“Statements of Objects and Reasons of a Statute may and do often
furnish valuable historical material in ascertaining the reasons which
induced the Legislature to enact a Statute, but in interpreting the
Statute they must be ignored.”
13. In Shashikant Laxman Kale and another v. Union of India and
another[6], a three-Judge Bench of this Court has expressed: -
“For determining the purpose or object of the legislation, it is
permissible to look into the circumstances which prevailed at the time
when the law was passed and which necessitated the passing of that
law. For the limited purpose of appreciating the background and the
antecedent factual matrix leading to the legislation, it is
permissible to look into the Statement of Objects and Reasons of the
Bill which actuated the step to provide a remedy for the then existing
malady.”
14. In New India Assurance Co. Ltd. v. Asha Rani and others[7], the Court
referred to the Statement of Objects and Reasons of the Motor Vehicles
Amendment Act, 1994 to understand the purpose behind the legislation.
15. The Statement of Objects and Reasons and Preamble make it quite clear
that the Legislature felt the compulsion to make special provisions
against gangsterism and anti-social activities. While speaking about
terrorism, the majority in Kartar Singh (supra) opined that it is much
more rather a grave emergent situation created either by external
forces particularly at the frontiers of this country or by anti-
nationals throwing a challenge to the very existence and sovereignty
of the country in its democratic polity. The learned Judges put it on
a higher plane than public order disturbing the “even tempo of the
life of community of any specified locality” as has been stated by
Hidayatullah, C.J., in Arun Ghosh v. State of West Bengal[8].
16. The present Act deals with gangs and gangsters to prevent organized
crime. Section 2 of the Act is the dictionary clause. Section 2(b)
defines the term “gang” and we think it apt to quote the relevant part
which is as follows: -
““Gang” means a group of persons, who acting either singly or
collectively, by violence, or threat or show of violence, or
intimidation, or coercion or otherwise with the object of disturbing
public order or of gaining any undue temporal, pecuniary, material or
other advantage for himself or any other person, indulge in anti-
social activities”
After so defining, the legislature has stipulated the offences which
are punishable under the Act, but they need not be referred to.
17. The term “gangster” has been defined under Section 2(c) which is as
follows: -
““gangster” means a member or leader or organizer of a gang and
includes any person who abets or assists in the activities of a gang
enumerated in clause (b), whether before or after the commission of
such activities or harbours any person who has indulged in such
activities.”
18. Section 3 of the Act deals with penalty. It is apt to reproduce the
same : -
“3. Penalty. – (1) A gangster, shall be punished with imprisonment of
either description for a term which shall not be less than two years
and which may extend to ten years and also with fine which shall not
be less than five thousand rupees:
Provided that a gangster who commits an offence against the
person of a public servant or the person of a member of the family of
a public servant shall be punished with imprisonment of either
description for a term which shall not be less than three years and
also with fine which shall not be less than five thousand rupees.
(2) Whoever being a public servant renders any illegal help or
support in any manner to a gangster, whether before or after the
commission of any offence by the gangster (whether by himself or
through others) or abstains from taking lawful measures or
intentionally avoids to carry out the directions of any Court or of
his superior officers, in this respect, shall be punished with
imprisonment of either description for a term which may extend to ten
years but shall not be less than three years and also with fine.”
19. Section 5 of the Act deals with Special Courts and Section 5(1)
provides that for the interest of speedy trial of offences under this
Act, the State Government may, if it considers necessary, constitute
one or more special courts. Section 7 deals with the jurisdiction of
the Special Courts. Section 7(1) provides that notwithstanding
anything contained in the Code, where a Special Court has been
constituted for any local area, every offence punishable under any
provision of this Act or any rule made thereunder shall be triable
only by the Special Court within whose local jurisdiction it was
committed, whether before or after the constitution of such Special
Court. Sub-section (2) of Section 7 lays the postulate that all cases
triable by a Special Court, which immediately before the constitution
of such Special Court were pending before any court, shall on creation
of such Special Court having jurisdiction over such cases, stand
transferred to it.
20. Section 8 deals with the power of Special Courts with respect to other
offences which reads as follows: -
“8. Power of Special Courts with respect to other offences. – (1) When
trying any offence punishable under this Act a Special Court may also
try any other offence with which the accused may, under any other law
for the time being in force, be charged at the same trial.
(2) If in the course of any trial under this Act of any offence, it
is found that the accused has committed any other offence under this
Act or any rule thereunder or under any other law, the Special Court
may convict such person of such other offence and pass any sentence
authorised by this Act or such rule or, as the case may be, such other
law, for the punishment thereof.”
21. Section 10 provides the procedure and powers of Special Courts and
Section 11 provides for protection of witnesses. Section 12, the
validity of which is under attack, is as follows: -
“12. Trial by Special Courts to have precedence. – The trial under
this Act of any offence by Special Court shall have precedence over
the trial of any other case against the accused in any other Court
(not being a Special Court) and shall be concluded in preference to
the trial of such other case and accordingly the trial of such other
case shall remain in abeyance.”
22. At this juncture, we may profitably recapitulate that it is the duty
of the Court to uphold the constitutional validity of a statute and
that there is always the presumption in favour of the
constitutionality of an enactment. In this context, we may fruitfully
refer to the decision in Charanjit Lal Chowdhury v. The Union of India
and others[9] wherein it has been ruled thus: -
“It is the accepted doctrine of American Courts, which I consider to
be well founded on principle, that the presumption is always in favour
of the constitutionality of an enactment, and the burden is upon him
who attacks it to show that there has been a clear transgression of
the constitutional principles.”
23. In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and others[10],
this Court had ruled that there is always a presumption in favour of
the constitutionality of an enactment and the burden is on him who
challenges the same to show that there has been a clear transgression
of the constitutional principles and it is the duty of the Court to
sustain that there is a presumption of constitutionality and in doing
so, the Court may take into consideration matters of common knowledge,
matters of common report, the history of the times and may assume
every state of facts which can be conceived existing at the time of
the legislations.
24. In State of Bihar and others v. Bihar Distillery Limited[11], the said
principle was reiterated.
25. In Burrakur Coal Co. Ltd. v. Union of India[12], Mudholkar, J.,
speaking for the Constitution Bench, observed: -
“Where the validity of a law made by a competent legislature is
challenged in a court of law, that court is bound to presume in favour
of its validity. Further, while considering the validity of the law
the court will not consider itself restricted to the pleadings of the
State and would be free to satisfy itself whether under any provision
of the Constitution the law can be sustained.”
26. In Pathumma and others v. State of Kerala and others[13], the seven-
Judge Bench has opined thus: -
“The judicial approach should be dynamic rather than static, pragmatic
and not pedantic and elastic rather than rigid. It must take into
consideration the changing trends of economic thought, the temper of
the times and the living aspirations and feelings of the people. This
Court while acting as a sentinel on the qui vive to protect
fundamental rights guaranteed to the citizens of the country must try
to strike a just balance between the fundamental rights and the larger
and broader interests of society, so that when such a right clashes
with the larger interest of the country it must yield to the latter.”
Again in the said judgment, it has been ruled thus: -
“It is obvious that the Legislature is in the best position to
understand and appreciate the needs of the people as enjoined by the
Constitution to bring about social reforms for the upliftment of the
backward and the weaker sections of the society and for the
improvement of the lot of poor people. The Court will, therefore,
interfere in this process only when the statute is clearly violative
of the right conferred on the citizen under Part III of the
Constitution or when the Act is beyond the legislative competence of
the legislature or such other grounds.”
27. The said principles have been reiterated by the majority in another
Constitution Bench in State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat and others[14].
28. At this juncture, we think it condign to sit in a time machine and
refer to the opinion expressed by Krishna Iyer, J., in R.S. Joshi,
Sales Tax Officer, Gujarat and others v. Ajit Mills Limited and
another[15]: -
“A prefatory caveat. When examining a legislation from the angle of
its vires, the Court has to be resilient, not rigid, forward-looking,
not static, liberal, not verbal – in interpreting the organic law of
the nation. We must also remember the constitutional proposition
enunciated by the U.S. Supreme Court in Munn v. Illinois[16] viz.,
‘that courts do not substitute their social and economic beliefs for
the judgment of legislative bodies’. Moreover, while trespasses will
not be forgiven, a presumption of constitutionality must colour
judicial construction. These factors, recognized by our Court, are
essential to the modus vivendi between the judicial and legislative
branches of the State, both working beneath the canopy of the
Constitution.”
29. We have referred to the aforesaid authorities for the sanguine reason
that the submissions raised at the Bar are to be considered in the
backdrop of the aforesaid “caveat”. The “Modus Vivendi” which needs a
purposive and constructive ratiocination while engaged in the
viceration of the provision, which draws its strength and stimulus in
its variations from the Constitution, we have to see whether the
provision trespasses the quintessential characteristics of the Organic
Law and, therefore, should not be allowed to stand.
30. Keeping the aforesaid enunciation in view, we shall presently proceed
to deal with the stand and stance of both the sides. The first
submission which pertains to the denial of speedy trial has been
interpreted to be a facet of Article 21 of the Constitution. In
Kartar Singh (supra), the majority, speaking through Pandian,J., has
expressed thus: -
“85. The right to a speedy trial is not only an important safeguard to
prevent undue and oppressive incarceration, to minimise anxiety and
concern accompanying the accusation and to limit the possibility of
impairing the ability of an accused to defend himself but also there
is a societal interest in providing a speedy trial. This right has
been actuated in the recent past and the courts have laid down a
series of decisions opening up new vistas of fundamental rights. In
fact, lot of cases are coming before the courts for quashing of
proceedings on the ground of inordinate and undue delay stating that
the invocation of this right even need not await formal indictment or
charge.
86. The concept of speedy trial is read into Article 21 as an
essential part of the fundamental right to life and liberty guaranteed
and preserved under our Constitution. The right to speedy trial begins
with the actual restraint imposed by arrest and consequent
incarceration and continues at all stages, namely, the stage of
investigation, inquiry, trial, appeal and revision so that any
possible prejudice that may result from impermissible and avoidable
delay from the time of the commission of the offence till it
consummates into a finality, can be averted. In this context, it may
be noted that the constitutional guarantee of speedy trial is properly
reflected in Section 309 of the Code of Criminal Procedure.”
31. Be it noted, the Court also referred to the pronouncements in
Hussainara Khatoon (I) v. Home Secretary, State of Bihar[17], Sunil
Batra v. Delhi Administration (I)[18], Hussainara Khatoon (IV) v. Home
Secretary, State of Bihar, Patna[19], Hussainara Khatoon (VI) v. Home
Secretary, State of Bihar, Govt. of Bihar, Patna[20], Kadra Pahadia v.
State of Bihar (II)[21], T.V. Vatheeswaran v. State of T.N.[22], and
Abdul Rehman Antulay v. R.S. Nayak[23].
32. The present provision is to be tested on the touchstone of the
aforesaid constitutional principle. The provision clearly mandates
that the trial under this Act of any offence by the Special Court
shall have precedence and shall be concluded in preference to the
trial of such other courts to achieve the said purpose. The
legislature thought it appropriate to provide that the trial of such
other case shall remain in abeyance. It is apt to note here that “any
other case” against the accused in “any other court” does not include
the Special Court. The emphasis is on speedy trial and not denial of
it. The legislature has incorporated such a provision so that an
accused does not face trial in two cases simultaneously and a case
before the Special Court does not linger owing to clash of dates in
trial. It is also worthy to note that the Special Court has been
conferred jurisdiction under sub-section (1) of Section 8 of the Act
to try any other offences with which the accused may, under any other
law for the time being in force, have been charged and proceeded at
the same trial.
33. As far as fair trial is concerned, needless to emphasise, it is an
integral part of the very soul of Article 21 of the Constitution.
Fair trial is the quintessentiality of apposite dispensation of
criminal justice. In Zahira Habibulla H. Sheikh and another v. State
of Gujarat and others[24], it has been held as follows: -
“33. The principle of fair trial now informs and energises many areas
of the law. It is reflected in numerous rules and practices. It is a
constant, ongoing development process continually adapted to new and
changing circumstances, and exigencies of the situation—peculiar at
times and related to the nature of crime, persons involved—directly or
operating behind, social impact and societal needs and even so many
powerful balancing factors which may come in the way of administration
of criminal justice system.”
In the said case, emphasis was laid on the triangulation of the
interest of the accused, the victim and the society and stress was further
laid on the fact that it is the community that acts through the State and
the prosecuting agencies and the interests of the society are not to be
treated completely with disdain and as persona non grata. In paragraphs 39
and 40 of the said judgment, it has been ruled thus: -
“39. Failure to accord fair hearing either to the accused or the
prosecution violates even minimum standards of due process of law. It
is inherent in the concept of due process of law, that condemnation
should be rendered only after the trial in which the hearing is a real
one, not sham or a mere farce and pretence. Since the fair hearing
requires an opportunity to preserve the process, it may be vitiated
and violated by an overhasty, stage-managed, tailored and partisan
trial.
40. The fair trial for a criminal offence consists not only in
technical observance of the frame and forms of law, but also in
recognition and just application of its principles in substance, to
find out the truth and prevent miscarriage of justice.”
34. In Mohd. Hussain alias Julfikar Ali v. State (Government of NCT of
Delhi)[25], this Court observed that “speedy trial” and “fair trial”
to a person accused of a crime are integral part of Article 21. There
is, however, qualitative difference between the right to speedy trial
and the right of the accused to fair trial. Unlike the right of the
accused to fair trial, deprivation of the right to speedy trial does
not per se prejudice the accused in defending himself.
35. Same principle was reiterated in Niranjan Hemchandra Sashittal and
another v. State of Maharashtra[26].
36. On a careful scrutiny of the provision, it is quite vivid that the
trial is not hampered as the trial in other courts is to remain in
abeyance by the legislative command. Thus, the question of
procrastination of trial does not arise. As the trial under the Act
would be in progress, the accused would have the fullest opportunity
to defend himself and there cannot be denial of fair trial. Thus, in
our considered opinion, the aforesaid provision does not frustrate the
concept of fair and speedy trial which are the imperative facets of
Article 21 of the Constitution.
37. The next limb of attack pertains to scuttling of liberty of the person
who is made an accused for an offence under the Act. There can never
be any shadow of doubt that sans liberty, the human dignity is likely
to be comatosed. The liberty of an individual cannot be allowed to
live on the support of a ventilator. Long back in the glory of
liberty, Henry Patrick, had to say this: -
“Is life so dear, or peace so sweet as to be purchased at the price of
chains and slavery? – Forbid it, Almighty God! – I know not what
course others may take, but, as for me, give me liberty or give me
death.[27]”
38. When the liberty of an individual is atrophied, there is a feeling of
winter of discontent. Personal liberty has its own glory and is to be
put on a pedestal in trial to try offenders, it is controlled by the
concept of “rational liberty”. In essence, liberty of an individual
should not be allowed to be eroded but every individual has an
obligation to see that he does not violate the laws of the land or
affect others’ lawful liberty to lose his own. The cry of liberty is
not to be confused with or misunderstood as unconcerned senile shout
for freedom. It may be apt to add here that the protection of the
collective is the bone marrow and that is why liberty in a civilized
society cannot be absolute. It is the duty of the courts to uphold
the dignity of personal liberty. It is also the duty of the court to
see whether the individual crosses the “Lakshman Rekha” that is carved
out by law is dealt with appropriately. In this context, we may
profitably reproduce a passage from the judgment in Ash Mohammad v.
Shiv Raj Singh alias Lalla Babu and another[28]: -
“17. We are absolutely conscious that liberty of a person should not
be lightly dealt with, for deprivation of liberty of a person has
immense impact on the mind of a person. Incarceration creates a
concavity in the personality of an individual. Sometimes it causes a
sense of vacuum. Needless to emphasise, the sacrosanctity of liberty
is paramount in a civilised society. However, in a democratic body
polity which is wedded to the rule of law an individual is expected to
grow within the social restrictions sanctioned by law. The individual
liberty is restricted by larger social interest and its deprivation
must have due sanction of law. In an orderly society an individual is
expected to live with dignity having respect for law and also giving
due respect to others’ rights. It is a well-accepted principle that
the concept of liberty is not in the realm of absolutism but is a
restricted one. The cry of the collective for justice, its desire for
peace and harmony and its necessity for security cannot be allowed to
be trivialised. The life of an individual living in a society governed
by the rule of law has to be regulated and such regulations which are
the source in law subserve the social balance and function as a
significant instrument for protection of human rights and security of
the collective. It is because fundamentally laws are made for their
obedience so that every member of the society lives peacefully in a
society to achieve his individual as well as social interest. That is
why Edmond Burke while discussing about liberty opined, “it is
regulated freedom”.
39. From the aforesaid, it is quite clear that no individual has any
right to hazard others’ liberty. The body polity governed by Rule of law
does not permit anti-social acts that lead to a disorderly society. Keeping
the aforesaid perspective in view, the submission of the learned counsel
for the petitioner and the argument advanced in oppugnation by the learned
counsel for the respondent are to be appreciated. It is urged that an
accused tried under this Act suffers detention as the trial in other cases
are not allowed to proceed. As far as other cases are concerned, there is
no prohibition to move an application taking recourse to the appropriate
provision under the Code of Criminal Procedure for grant of bail. What is
stipulated under Section 12 of the Act is that the trial in other case is
to be kept in abeyance. Special courts have been conferred with the power
to try any other offence with which the accused under the Act is charged at
the same trial. Quite apart from the above, the Act empowers the special
courts to grant bail to an accused under the Act though the provision is
rigorous. Sections 19(4) and 19(5) deal with the same. They are as
follows: -
“19. Modified application of certain provisions of the Code –
(4) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under this Act or any rule made
thereunder shall, if in custody, be released on bail or on his own
bond unless:
(a) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
(b) where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing
that he is not guilty of such offence and that he is not likely
to commit any offence while on bail.
(5) The limitations on granting of bail specified in sub-section (4)
are in addition to the limitations under the Code.”
40. The said provisions are akin to the provisions contained in Section
37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
41. The provision under Section 37 of the NDPS Act, though lays
conditions precedent and they are in addition to what has been stipulated
in the Code of Criminal Procedure, yet there is no deprivation of liberty.
Be it noted, a more stringent provision is contained in MCOCA under Section
21 (5). It reads as under:-
“21(5) Notwithstanding anything contained in the Code, the accused
shall not be granted bail if it is noticed by the court that he was on
bail in an offence under this Act, or under any other Act, on the date
of the offence in question.”
A three-Judge Bench in State of Maharashtra v. Bharat Shanti Lal Shah
and Others[29] dealing with said facet has opined thus:-
“63. As discussed above the object of MCOCA is to prevent the
organized crime and, therefore, there could be reason to deny
consideration of grant of bail if one has committed a similar offence
once again after being released on bail but the same consideration
cannot be extended to a person who commits an offence under some other
Act, for commission of an offence under some other Act would not be in
any case in consonance with the object of the Act which is enacted in
order to prevent only organized crime.”
Thereafter, the learned judges observed that the expression “or under any
other Act” in the provision being discriminatory was violative of Articles
14 and 21 of the Constitution. Such a provision is absent in Section 19 of
the Act. Thus, there being a provision for grant of bail, though
restricted, we are disposed to think that the contention that the accused
is compelled to languish in custody because of detention under the Act does
not deserve acceptation and is, accordingly, negatived.
42. The next submission of the learned counsel is that it is in the nature
of preventive detention as is understood under Article 22(4) of the
Constitution of India. The said contention is to be taken note of only
to be rejected, for the concept of preventive detention is not even
remotely attracted to the arrest and detention for an offence under the
Act.
43. The next proponement, as noted, pertains to the violation of the
equality clause as enshrined under Article 14 of the Constitution. Mr.
Garg has endeavoured to impress upon us that the accused who is only
tried by other courts gets the benefit of speedy trial whereas the
accused tried under this Act has to suffer because trial in other courts
are kept in abeyance. We have already expressed our view that the
concept of speedy and fair trial is neither smothered nor scuttled when
the trial in other courts are kept in abeyance. As far as Article 14 is
concerned, we do not perceive that the procedure provided in the Act
tantamounts to denial of fundamental fairness in trial. It does not
really shock the judicial conscience and by no stretch of imagination,
it can be said to be an anathema to the sense of justice. It is neither
unfair nor arbitrary. It is apposite to note here that there is a
distinction between an accused who faces trial in other courts and the
accused in the special courts because the accused herein is tried by the
Special Court as he is a gangster as defined under Section 2(c) of the
Act and is involved in anti-social activities with the object of
disturbing public order or of gaining any undue temporal, pecuniary,
material or other advantage for himself or any other person.
44. It is a crime of a different nature. Apart from normal criminality,
the accused is also involved in organized crime for a different purpose
and motive. The accused persons under the Act belong to altogether a
different category. The legislature has felt that they are to be dealt
with in a different manner and, accordingly, the trial is mandated to be
held by the special courts in an expeditious manner. The intention of
the legislature is to curb such kind of organized crimes which have
become epidemic in the society. In Kartar Singh (supra), the majority
has said, “Legislation begins where Evil begins”. The legislature, as
it seems to us, being guided by its sacrosanct duty to protect the
individual members of society to enjoy their rights without fear and see
that some people do not become a menace to the society in a singular or
collective manner, has enacted such a provision. In this context, we
may refer with profit to the authority in The Works Manager, Central
Railway Workshop, Jhansi v. Vishwanath and others[30], wherein a three-
Judge Bench, though in a different context, has observed that certain
types of enactments are more responsive to some urgent social demands
and also have more immediate and visible impact on social vices by
operating more directly to achieve social reforms. We have referred to
the said observations only to highlight how the legislature in a welfare
State immediately steps in for social reforms to eradicate social vices.
Similarly, sometimes it is compelled to take steps to control the
frenzied criminal action of some anti-social people. In the case at
hand it can be stated with certitude that the legislature has felt that
there should be curtailment of the activities of the gangsters and,
accordingly, provided for stern delineation with such activities to
establish stability in society where citizens can live in peace and
enjoy a secured life. It has to be kept uppermost in mind that control
of crime by making appropriate legislation is the most important duty of
the legislature in a democratic polity, for it is necessary to scuttle
serious threats to the safety of the citizens. Therefore, the
legislature has, in actuality, responded to the actual feelings and
requirements of the collective.
45. Thus, the accused under the Act is in a distinct category and the differentiation between the two, namely, a person arrayed as an accused in respect of offences under other Acts and an accused under the Act is a rational one. It cannot be said to be arbitrary. It does not defeat the concept of permissible classification.
The majority in Kartar Singh (supra) has expressed thus: -
“218. The principle of legislative classification is an accepted principle where under persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction.
The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.”
46. Tested on the touchstone of the abovestated principles, the
irresistible conclusion is that the classification is in the permissible
realm of Article 14 of the Constitution. Therefore, the submission that
Section 12 invites the wrath of Article 14 of the Constitution is sans
substratum and, accordingly, we have no hesitation in repelling the same
and we so do.
47. In view of the aforesaid analysis, we uphold the constitutional
validity of Section 12 of the Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 as it does not infringe any of the
facets of Articles 14 and 21 of the Constitution of India. Ex-
consequenti, the writ petition, being devoid of merit, stands dismissed.
..…………………………….J.
[H.L. Gokhale]
….………………………….J.
[Dipak Misra]
New Delhi;
August 02, 2013
-----------------------
[1] AIR 1987 All 235
[2] Writ Petition (Crl.) No. 317 of 1987 dt. 9.12.1987
[3] (1994) 3 SCC 569
[4] (2000) 10 SCC 145
[5] AIR 1963 SC 703
[6] AIR 1990 SC 2114
[7] (2003) 2 SCC 223
[8] (1970) 1 SCC 98
[9] AIR 1951 SC 41
[10] AIR 1958 SC 538
[11] AIR 1997 SC 1511
[12] AIR 1961 SC 954
[13] (1978) 2 SCC 1
[14] (2005) 8 SCC 534
[15] (1977) 4 SCC 98
[16] (1876) 94 US 113 (quoted in Labor Board v. Jones & Laughlin, 391 US
1, 33-34-Corwin, Constitution of the USA, Introduction, p. XXXI)
[17] (1980) 1 SCC 81
[18] (1978) 4 SCC 494
[19] (1980) 1 SCC 98
[20] (1980) 1 SCC 115
[21] (1983) 2 SCC 104
[22] (1983) 2 SCC 68
[23] (1992) 1 SCC 225
[24] (2004) 4 SCC 158
[25] (2012) 9 SCC 408
[26] (2013) 4 SCC 642
[27] HENRY, Patrick, Speech in the Virginia Revoluntionary Council,
Richmond, 1175 in Henry, William Writ, Patrick Henry: Life Correspondence
and Speeches (New York: Charles Scribner’s Sons, 1891), Vol. 1, p.268.
[28] (2012) 9 SCC 446
[29] (2008) 13 SCC 5
[30] (1969) 3 SCC 95
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