HCD upholds the right of the accused to speedy trial | The Daily Star
12:00 AM, November 24, 2020 / LAST MODIFIED: 02:15 AM, November 24, 2020

Rights Advocacy: Delay in criminal proceedings

HCD upholds the right of the accused to speedy trial

On April, 2019, a Bangla newspaper published a report regarding a '100-year old' woman who had been wandering the court for 18 years in search of justice in a case against her under the Arms Act 1878. The newspaper was brought to the attention of the court by Advocate Md. Ashraful Alam who filed an application under section 561A of the Code of Criminal Procedure 1898 for the quashment of the proceedings. In its judgment dated 30 October 2019, the High Court Division quashed the proceedings.

Section 561A of the Code confers upon the High Court Division the inherent power to make any orders to prevent the abuse of the process of the court and secure the ends of justice. The advocate on behalf of the applicant submitted before court that the Investigating Officer in the case had died and the only co-accused was also proved to be dead. In such circumstances, the prosecution failed to conclude the case and repeatedly failed to bring witnesses before the courts. The accused, Rabeya Khatun, had been present throughout all proceedings. Based on such premises, the advocate submitted that the delay by the prosecution amount to abuse of process of the courts and the accused's constitutional right to a speedy trial (as guaranteed under Article 35) has been violated and thus, the proceedings should be quashed.

In deciding the case, the HCD perused both national and foreign cases. It likened the guarantee of speedy trial under the Constitution to the Sixth Amendment rights of the US Constitution. As such, it referred to the case of Mac Barker Vs. John Wingo(1971) 407 US 514 where the court identified four factors that shall be examined to determine whether the right to speedy trial has been violated. These are: length of delay, the reasons given by the prosecution regarding the delay, the responsibility of the accused for asserting his rights and prejudice towards the accused. The HCD also evaluated cases of similar instance before Indian courts where right to speedy trial was examined in the light of Article 21 of the Indian Constitution.

The HCD also determined that applications for quashment under section 561A on grounds of delay have been upheld in many cases. However, it noted that the concept of speedy trial is relative in nature and must be examined on a case-by-case basis. Other factors such as 'the nature of offence, the number of accused, the number of witnesses, the work-load in the particular Court, means of communication and several other circumstances' should also be borne in mind. The HCD stressed that trial must be 'swift but deliberate' and there may be instances where despite the best efforts of the prosecution, delay or presence of the witnesses cannot be ensured.

In the light of the above discussion, the Court decided that even if the delay was not a deliberate attempt by the prosecution, the negligence is undeniable as it failed to notify the court of the subsequent death of the IO and the co-accused and also failed to produce witnesses. As such, this was a clear violation of the accused's rights and she had been 'been subjected to prolonged agony, worry, expenses, disturbance to her occupation and peace and also harassment' for over 17 years.

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