AJAY KUMAR CHOUDHARYversusUNION OF INDIA THROUGH ITS SECRETARY & ANR.

                   [2015] 2 S.C.R. 415


              AJAY KUMAR CHOUDHARY                            A

                            v.

UNION OF INDIA THROUGH ITS SECRETARY & ANR.

            (Civil Appeal No. 1912 of 2015)
                                                              B

                 FEBRUARY 16, 2015.

    [VIKRAMAJIT SEN AND C. NAGAPPAN, JJ.]
                                                              c
     Service Law - Suspension - Protraction of -
Propriety - Held: Right to speedy trial is implicit in Art.
21 of the Constitution and also reflected in s.309 Cr.PC.
- Proviso to s. 167(2) Cr.P. C. has the effect of
circumscribing the detention of an accused within a           D
period of 90 days - The quintessence of the proviso to
s.167(2) can be extrapolated to moderate suspension
orders in cases of departmental disciplinary inquiries -
Thus, it is directed that currency of suspension should
not extend beyond three months, if within this period         E
charge-sheet is not served on the delinquent - If the
charge-sheet is served, a reasoned order must be
passed for extention of suspension - The Government
is free to transfer the delinquent to any other               F
department and impose such conditions that the
delinquent is not able to affect the investigation - This
will adequately safeguard the principle of human dignity
and right to speedy trial and will also preserve the
interest of Government in the prosecution - In the            G
present case, since the delinquent/appellant has been
served with the charge-sheet, the above directions are
not applicable to him - However, the delinquent is given
                           415                                H
416        SUPREME COURT REPORTS             [2015] 2 S.C.R.


A liberty to challenge his continued suspension in
      appropriate forum - Constitution of India, 1950 - Art.
      21 - Code of Criminal Procedure, 1973 - ss.309 and
      Proviso to s. 167(2) - Magna Carta of 1215 -
 8    Universal Declaration of Human Rights, 1948 - Art.
      12 - European Convention on Human Rights - Art.
      6(1).

         Disposing of the appeal, the Court
c     HELD: 1. In the present case, reasons were
  elaborately recorded for each extension of
  suspension and within the currency of the then
  prevailing period. The salutary requirement of
D natural justice, that is of spelling out the reasons
  for the passing of an order, has been complied
  with in the present case. [Para 6] [423-H; 424-A,B]

    Ravi Yashwant Bhoir v. District Collector, Raigad
E 2012 (3) scR 775 = 2012 (4) sec 407 - held
  inapplicable.

   State of A. P. v. N. Radhakishan 1998 (2) SCR 693
  = 1998 (4) SCC 154, Union of India v. Dipak Mali
F 2009 (16) SCR 564 = 2010 (2) sec 222 -
  distinguished.
      2.1 Suspension, specially preceding the
  formulation of charges, is essentially transitory or
G temporary in nature, and must perforce be of short
  duration. If it is for an indeterminate period or if
  its renewal is not based on sound reasoning
  contemporaneously available on the record, this
H would render it punitive in nature. Departmental/
 AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 417
                 ITS SECY.

 disciplinary proceedings invariably commence with A
 delay, are plagued with procrastination prior and
 post the drawing up of the Memorandum of
 Charges, and eventually culminate after even longer
 delay. [Para 8] [425-A-C]
                                                         B
     2.2 Right to speedy trial is implicit in Article 21
 of the Constitution and is also reflected in Section
 309 of the Cr.P.C. 1973; that it encompasses all
stages, viz., investigation, inquiry, trial, appeal, C
 revision and re-trial; that the burden lies on the
 prosecution to justify and explain the delay; that
the Court must engage in a balancing test to
determine whether this right had been denied in
the particular case before it. Keeping these factors D
in mind the Central Administrative Tribunal had
directed that the appellant's suspension would not
be extended beyond 90 days from 19.3.2013. The
High Court set aside this direction, viewing it as a
                                                         E
substitution of a judicial determination to the
authority possessing that power, i.e., the
Government. This conclusion of the High Court
cannot be sustained. [Para 11] [427-H; 428-A-C]
                                                         F
Kartar Singh v. State of Punjab 1994 (2) SCR 375 =
(1994) 3 SCC 569; Abdul Rehman Antulay v. R.S.
Na yak 1991 (3) Suppl. SCR 325 = 1992 (1) SCC 225-
followed.
                                                          G
State of Punjab v. Chaman Lal Goyal 1995 (1) SCR
695 = (1995) 2 sec 570 - relied on.

Klapfer vs. State of North Carolina 386 U.S. 213 (1967)
- referred to.                                            H
418        SUPREME COURT REPORTS              [2015] 2 S.C.R.


A         2.3 Prior to 1973 an accused could be detained for
      continuous and consecutive periods of 15 days, albeit,
      after judicial scrutiny and supervision. The Cr.P.C. of
      1973 contains a new proviso which has the effect of
      circumscribing the po,wer of the Magistrate to
 8
      authorise detention of an accused person beyond
      period of 90 days where the investigation relates to an
      offence punishable with death, imprisonment for life
      or imprisonment for a term of not less than 10 years,
 c    and beyond a period of 60 days where the
      investigation relates to any other offence. The
      quintessence of the proviso of Section 167(2) of the
      Cr.P.C. 1973 can be extrapolated to moderate
      Suspension Orders in cases of departmental/
 D    disciplinary inquiries also. If Parliament considered it
      necessary that a person be released from
      incarceration after the expiry of 90 days even though
      accused of commission of the most heinous crimes, a
      fortiori suspension should not be continued after the
 E    expiry of the similar period especially when a
      Memorandum of Charges/Chargesheet has not been
      served on the suspended person. It is true that the
      proviso to Section 167(2) Cr.P.C. postulates personal
 F    freedom, but respect and preservation of human
      dignity as well as the right to a speedy trial should
      also be placed on the same pedestal. [Para 13] [433-F-
      H;434-A-D]

          Raghubir Singh v. State of Bihar 1986 (3) SCR 802 =
G
      1986 (4) sec 481 - relied on.

      2.4 It is, therefore, directed that the currency of a
   Suspension Order should not extend beyond three
 H months if within this period the Memorandum of
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 419
                      ITS SECY.

Charges/ Chargesheet is not served on the                 A
delinquent officer/employee; if the Memorandum of
Charges/Chargesheet is served, a reasoned order
must be passed for the extension of the suspension.
The Government is free to transfer the concerned
person to any Department in any of its offices within     B
or outside the State so as to sever any local or
personal contact that he may have and which he
may misuse for obstructing the investigation against
him. The Government may also prohibit him from
contacting any person, or handling records and            C
documents till the stage of his having to prepare his
defence. This will adequately safeguard the
universally recognized principle of human dignity
and the right to a speedy trial and shall also preserve
the interest of the Government in the prosecution.        D
In the present case, the appellant has now been
served with a Chargesheet, and, therefore, these
directions may not be relevant to him any longer.
However, if the Appellant is so advised he may
challenge his continued suspension in any manner          E
known to law, and this action of the Respondents
will be subject to judicial review. [Paras 14-15] [434-
E-H; 435-C-H]

    0.P Gupta v. Union of India 1988 (1) SCR 27 = 1987 F
(4) SCC 328, K. Sukhendar Reddy v. State of A.P 1999
(6) sec 257 = 1999 (6) sec 257 - cited.

                  Case Law Reference
  2012 (3) SCR 775      held inapplicable para 6          G
  1988 (1) SCR 27       cited              para 7
 1999 (6) sec 257        cited             para 7
 1998 (2) SCR 693        distinguished     para 7         H
420        SUPREME COURT REPORTS               [2015] 2 S.C.R.


A       2009 (1) SCR 564         distinguished para 7

        386 U.S. 213 (1967)      referred to     para 10

        1994 (2) SCR 375         followed        para 10

B       1991 (3) Suppl. SCR 325 followed          para 11

        1995 (1) SCR 695         relied on       para 12

        1986 (3) SCR 802         relied on       para 13

c        CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      1912 of 2015

      From the Judgment and Order dated 04.09.2013 of
  the High Court of Delhi at New Delhi in WP (Civil) No.
D 4017 of 2013.

          Nidhesh Gupta, Ravi Prakash, Nitish Gupta, Chandra
      Prakash for the Appellant.

      P. S. Patwalia, ASG, Madhvi Dvan, Kavin Gulati, Kiran
E Bhardwaj, B. V. Balaram Das for the Respondents.

         The Judgment of the Court was delivered by

         VIKRAMAJIT SEN,J. 1. Leave granted.
F     2. The Appellant assails his suspension which was
  effected on 30.9.2011 and has been extended and
  continued ever since. In November, 2006, he was
  posted as the Defence Estate Officer (DEO) Kashmir
G Circle, Jammu & Kashmir. During this tenure it was
  discovered that a large portion of the land owned by
  the Union of India and held by the Director General
  Defence Estates had not been mutated/noted in the
  Revenue records as Defence Lands. The Appellant
H alleges that between 2008 and 2009, Office-notes
 AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 421
         ITS SECY. [VIKRAMAJIT SEN, J.]

 were prepared by his staff, namely, Shri Vijay Kumar, A
  SD0-11, Smt. Amarjit Kaur, SD0-111, Shri Abdul Sayoom
 Technical Assistant, and Shri Noor Mohd., LDC, that
 approximately four acres of land were not Defence
 Lands, but were private lands in respect of which
 NOCs could be issued. These NOCs were accordingly B
 issued by the Appellant. Thereafter, on 3.4.2010, the
 Appellant was transferred to Ambala Gantt. However,
 vide letter dated 25.1.2011 the Appellant was asked
 to give his explanation for issuing the factually
 incorrect NOCs. In his reply the Appellant admitted C
 his mistake, denied any mala tides in issuing the
 NOCs, and attributed the issuance of the NOCs to
 the notes prepared by the subordinate staff of SDOs/
 Technical Officer. It was in this background that he D
 received the Suspension Order dated 30.9.2011.
Various litigation was fruitlessly initiated by the
Appellant in the Central Administrative Tribunal,
Chandigarh Bench, as well as in the Punjab & Haryana
High Court, with which we are not concerned. The E
Appellant asserts that since the subject land was within
the parameter wall of the Air Force Station, no physical
transfer thereof has occurred. On 28.12.2011 the
Appellant's suspension was extended for the first time
for a further period of 180 days. This prompted the F
Appellant to approach the Central Administrative
Tribunal, Chandigarh Bench (CAT), and during the
pendency of the proceedings the second extension
was ordered with effect from 26.6.2012 for another
period of 180 days. The challenge to these extensions G
did not meet with success before the CAT. Thereafter,
the third extension of the Appellant's suspension was
ordered on 21.12.2012, but for a period of 90 days.
It came to be followed by the fourth suspension for
                                                         H
422         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A     yet another period of 90 days with effect from 22.3.2013.

           3. It appears that the Tribunal gave partial relief to the
      Appellant in terms of its Order dated 22.5.2013 opining that
      no employee can be indefinitely suspended; that disciplinary
 B    proceedings have to be concluded within a reasonable
      period. The CAT directed that if no charge memo was issued
      to the Appellant before the expiry on 21.6.2013 of the then
      prevailing period the Appellant would be reinstated in service.
C     The CAT further ordered that if it was decided to conduct an
      Inquiry it had to be concluded "in a time bound manner". The
      Appellant alleges that the suspension was not extended
      beyond 19.6.2013 but this is not correct. The Respondent,
      Union of India filed a Writ Petition before the Delhi High Court
 D    contending that the Tribunal had exercised power not
      possessed by it inasmuch as it directed that the suspension
      would not be extended if the charge memo was served on
      the Appellant after the expiry of 90 days from 19.3.2013 (i.e.
 E    the currency of the then extant Suspension Order). This
      challenge has found favour with the Court in terms of the
  impugned Judgment dated September 04, 2013. The Writ
  Court formulated the question before it to be "whether the
  impugned directions circumscribing the Government's power
F to continue the suspension and also to issue a chargesheet
  within a time bound manner can be sustained". It opined that
  the Tribunal's view was "nothing but a substitution of a judicial
  determination to that of the authority possessing the power,
G i.e., the Executive Government as to the justification or
  rationale to continue with the suspension". The Writ Petition
  was allowed and the Central Government was directed to
  pass appropriate orders "as to whether it wishes to continue
  with the suspension or not having regard to all the ~elevant
H
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 423
        ITS SECY. [VIKRAMAJIT SEN, J.]

factors, including the report of the CBI, if any, it might have A
received by now. This exercise should be completed as
early as possible and within two weeks from today."

    4. This has led to the filing of the Appeal before this
Court. In the hearing held on 11.07.14, it was noted that B
by letter dated 13.6.2014 the suspension of the Appellant
had been continued for a period of 90 days with effect
from 15.6.2014 (i.e. the fourth extension), and that
investigation having been completed, sanction for
prosecution was to be granted within a period of two C
weeks. When the arguments were heard in great detail
on 9th September, 2014 by which date neither a
Chargesheet nor a Memorandum of Charges had been
served on the Appellant. It had been contended by learned
counsel for the Appellant that this letter, as well as the D
preceding one dated 8.10.2013, had been back-dated. We
had called for the original records and on perusal this
contention was found by us to be without substance.

     5. The learned Additional Solicitor General has E
submitted that the original suspension was in
contemplation of a departmental inquiry which could not
be commenced because of a directive of the Central
Vigilance Commission prohibiting its commencement ifthe
matter was under the investigation of the CBI. The F
sanction for prosecution was granted on 1.8.2014. It was
also submitted that the Chargesheet was expected to be
served on the Appellant before 12.9.2014, (viz., before
the expiry of the fourth extension). However, we need to
underscore that the Appellant has been continuously on G
suspension from 30.9.2011.

    6. It is necessary to record that all the relevant files were
shown to us, on the perusal of which it was evident that
reasons were elaborately recorded for the each                      H
424       SUPREME COURT REPORTS                [2015] 2 S.C.R.


A extension of suspension and within the currency of the
  then prevailing period. Therefore, the reliance of learned
  Senior Counsel for the Appellant on Ravi Yashwant Bhoir
  v. District Collector, Raigad 2012 (4) SCC 407, is of no
  avail since the salutary requirement of natural justice, that
B is of spelling out the reasons for the passing of an order,
  has been complied with.

        7. Learned Senior Counsel for the Appellant, however,
   has rightly relied on a series of Judgments of this Court,
C including O.P. Gupta v. Union of India 1987 (4) SCC 328,
   where this Court has enunciated that the suspension of
   an employee is injurious to his interests and must not be
   continued for an unreasonably long period; that, therefore,
   an order of suspension should not be lightly passed. Our
D attention has also been drawn to K. Sukhendar Reddy v.
   State of A. P. 1999 (6) SCC 257, which is topical in that it
   castigates selective suspension perpetuated indefinitely
   in circumstances where other involved persons had not
   been subjected to any scrutiny. Reliance on this decision
E is in the backdrop of the admitted facts that all the persons
  who have been privy to the making of the Office-notes
  have not been proceeded against departmentally. So far
  as the question of prejudicial treatment accorded to an
F employee is concerned, this Court in State of A.P. v. N.
  Radhakishan 1998 (4) SCC 154, has observed that it
  would be fair to make this assumption of prejudice if there
  is an unexplained delay in the conclusion of proceedings.
  However, the decision of this Court in Union of India v.
G Dipak Mali 2010 (2) SCC 222 does not come to the
  succour of the Appellant since our inspection of the
  records produced in original have established that firstly,
  the decision to continue the suspension was carried out
  within the then prevailing period and secondly, that it was
H duly supported by elaborate reasoning.
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 423
        ITS SECY. [VIKRAMAJIT SEN, J.]

factors, including the report of the CBI, if any, it might have   A
received by now. This exercise should be completed as
early as possible and within two weeks from today."

     4. This has led to the filing of the Appeal before this
Court. In the hearing held on 11.07.14, it was noted that B
by letter dated 13.6.2014 the suspension of the Appellant
had been continued for a period of 90 days with effect
from 15.6.2014 (i.e. the fourth extension), and that
investigation having been completed, sanction for
prosecution was to be granted within a period of two C
weeks. When the arguments were heard in great detail
on 9 1h September, 2014 by which date neither a
Chargesheet nor a Memorandum of Charges had been
served on the Appellant. It had been contended by learned
counsel for the Appellant that this letter, as well as the D
preceding one dated 8.10.2013, had been back-dated. We
had called for the original records and on perusal this
contention was found by us to be without substance.

     5. The learned Additional Solicitor General has E
submitted that the original suspension was in
contemplation of a departmental inquiry which could not
be commenced because of a directive of the Central
Vigilance Commission prohibiting its commencement if the
matter was under the investigation of the CBI. The F
sanction for prosecution was granted on 1.8.2014. It was
also submitted that the Chargesheet was expected to be
served on the Appellant before 12.9.2014, (viz., before
the expiry of the fourth extension). However, we need to
underscore that the Appellant has been continuously on G
suspension from 30.9.2011.

    6. It is necessary to record that all the relevant files were
shown to us, on the perusal of which it was evident that
reasons were elaborately recorded for the each H
424         SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A extension of suspension and within the currency of the
  then prevailing period. Therefore, the reliance of learned
  Senior Counsel for the Appellant on Ravi Yashwant Bhoir
  v. District Collector, Raigad 2012 (4) SCC 407, is of no
  avail since the salutary requirement of natural justice, that
B is of spelling out the reasons for the passing of an order,
  has been complied with.

            7. Learned Senior Counsel for the Appellant, however,
       has rightly relied on a series of Judgments of this Court,
C      including O.P. Gupta v. Union of India 1987 (4) SCC 328,
      where this Court has enunciated that the suspension of
      an employee is injurious to his interests and must not be
      continued for an unreasonably long period; that, therefore,
      an order of suspension should not be lightly passed. Our
D     attention has also been drawn to K. Sukhendar Reddy v.
      State of A. P. 1999 (6) SCC 257, which is topical in that it
      castigates selective suspension perpetuated indefinitely
      in circumstances where other involved persons had not
      been subjected to any scrutiny. Reliance on this decision
E     is in the backdrop of the admitted facts that all the persons
      who have been privy to the making of the Office-notes
      have not been proceeded against departmentally. So far
      as the question of prejudicial treatment accorded to an
F     employee is concerned, this Court in State of A.P. v. N.
      Radhakishan 1998 (4) SCC 154, has observed that it
      would be fair to make this assumption of prejudice if there
      is an unexplained delay in the conclusion of proceedings.
      However, the decision of this Court in Union of India v.
G     Dipak Mali 2010 (2) SCC 222 does not come to the
      succour of the Appellant since our inspection of the
      records produced in original have established that firstly,
      the decision to continue the suspension was carried out
      within the then prevailing period and secondly, that it was
H     duly supported by elaborate reasoning.
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 425
        ITS SECY. [VIKRAMAJIT SEN, J.]

    8. Suspension, specially preceding the formulation of A
charges, is essentially transitory or temporary in nature, and
must perforce be of short duration. If it is for an
indeterminate period or if its renewal is not based on sound
reasoning contemporaneously available on the record, this
                                                               8
would render it punitive in nature. Departmental/disciplinary
proceedings invariably commence with delay, are plagued
with procrastination prior and post the drawing up of the
Memorandum of Charges, and eventually culminate after
even longer delay.                                             c
     9. Protracted periods of suspension, repeated renewal
thereof, have regrettably become the norm and not the
exception that they ought to be. The suspended person
suffering the ignominy of insinuations, the scorn of society       D
and the derision of his Department, has to endure this
excruciation even before he is formally charged with some
 misdemeanour, indiscretion or offence. His torment is his
knowledge that if and when charged, it will inexorably take
an inordinate time for the inquisition or inquiry to come to       E
its culmination, that is to determine his innocence or iniquity.
Much too often this has now become an accompaniment to
retirement. Indubitably the sophist will nimbly counter that
our Constitution does not explicitly guarantee either the right
to a speedy trial even to the incarcerated, or assume the          F
presumption of innocence to the accused. But we must
remember that both these factors are legal ground norms,
are inextricable tenets of common law jurisprudence,
antedating even the Magna Carta of 1215, which assures
that - "We will sell to no man, we will not deny or defer to       G
any man either justice or right." In similar vein the Sixth
Amendment to the Constitution of the United States of
America guarantees that in all criminal prosecutions the
accused shall enjoy the right to a speedy and public trial.
                                                                   H
426       SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A Article 12 of the Universal Declaration of Human Rights, 1948
  assures that - "No one shall be subjected to arbitrary
  interference with his privacy, family, home or
  correspondence, nor to attacks upon his honour and
  reputation. Everyone has the right to the protection of the law
B against such interference or attacks". More recently, the
  European Convention on Human Rights in Article 6(1)
  promises that "in the determination of his civil rights and
  obligations or of any criminal charge against him, everyone
  is entitled to a fair and public hearing within a reasonable
C time .... " and in its second sub article that "everyone charged
  with a criminal offence shall be presumed innocent until
  proved guilty according to law".

      10. The Supreme Court of the United States struck
D down the use of no/le persequi, an indefinite but ominous
  and omnipresent postponement of civil or criminal
  prosecution in Klapfer vs. State of North Carolina 386 U.S.
  213 (1967). In Kartar Singh vs. State of Punjab (1994) 3
  SCC 569 the Constitution Bench of this Court unequivocally
E construed the right of speedy trial as a fundamental right,
  and we can do no better the extract these paragraphs
  from that celebrated decision -

        " 86 The concept of speedy trial is read into
 F      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
G       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,
H
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 427
        ITS SECY. [VIKRAMAJIT SEN, J.]

    can be averted. In this context, it may be noted           A
    that the constitutional guarantee of speedy trial is
    properly reflected in Section 309 of the Code of
    Criminal Procedure.

    87. This Court in Hussainara Khatoon (I) v. Home           B
    Secretary, State of Bihar while dealing with Article
    21 of the Constitution of India has observed thus:

      "No procedure which does not ensure a
    reasonably quick trial can be regarded as
    'reasonable, fair or just' and it would fall foul of
                                                               c
    Article 21. There can, therefore, be no doubt that
    speec;!y trial, and by speedy trial we mean
    reasonably expeditious trial, is an integral and
    essential part of the fundamental right to life and        D
    liberty enshrined in Article 21. The question which
    would, however, arise is as to what would be the
    consequence if a person accused of an offence is
    denied speedy trial and is sought to be deprived
    of his liberty by imprisonment as a result of a long       E
    delayed trial in violation of his fundamental right
    under Article 21. Would he be entitled to be
    released unconditionally freed from the charge
    levelled against him on the ground that trying him
    after an unduly long period of time and convicting         F
    him after such trial would constitute violation of
    his fundamental right under Article 21."

     11. The legal expectation of expedition and diligence
being present at every stage of a criminal trial and a fortiori G
in departmental inquiries has been emphasised by this
Court on numerous occasions. The Constitution Bench in
Abdul Rehman Antulay vs. R.S. Nayak, 1992 (1) SCC
225, underscored that this right to speedy trial is implicit in
Article 21 of the Constitution and is also reflected in Section H
428      SUPREME COURT REPORTS                     [2015] 2 S.C.R.


A 309 of the Cr.P.C., 1973; that it encompasses all stages,
  viz., investigation, inquiry, trial, appeal, revision and re-
  trial; that the burden lies on the prosecution to justify and
  explain the delay; that the Court must engage in a balancing
  test to determine whether this right had been denied in the
B particular case before it. Keeping these factors in mind
  the CAT had in the case in hand directed that the
  Appellant's suspension would not be extended beyond 90
  days from 19.3.2013. The High Court had set aside this
  direction, viewing it as a substitution of a judicial
C determination to the authority possessing that power, i.e.,
  the Government. This conclusion of the High Court cannot
  be sustained in view of the following pronouncement of
  the Constitution Bench in Antulay:

D           86. In view of the above discussion, the
       following propositions emerge, meant to serve as
       guidelines. We must forewarn that these
       propositions are not exhaustive. It is difficult to
       foresee all situations. Nor is it possible to lay down
E      any hard and fast rules. These propositions are:

             (1) Fair, just and reasonable procedure implicit
       in Article 21 of the Constitution creates a right in
       the accused to be tried speedily. Right to speedy
F      trial is the right of the accused. The fact that a
       speedy trial is also in public interest or that it serves
       the social interest also, does not make it any the
       less the right of the accused. It is in the interest
       of all concerned that the guilt or innocence of the
G      accused is determined as quickly as possible in
       the circumstances.

            (2) Right to speedy trial flowing from Article
       21 encompasses all the stages, namely the stage
H      of investigation, inquiry, trial, appeal, revision and
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 429
        ITS SECY. [VIKRAMAJIT SEN, J.]

  re-trial. That is how, this Court has understood         A
  this right and there is no reason to take a restricted
  view.

        (3) The concerns underlying the right to speedy
  trial from the point of view of the accused are:         8
   (a) the period of remand and pre-conviction
   detention should be as short as possible. In
   other words, the accused should not be
   subjected to unnecessary or unduly long                 c
   incarceration prior to his conviction;

   (b) the worry, anxiety, expense and disturbance
   to his vocation and peace, resulting from an
   unduly prolonged investigation, inquiry or trial
                                                           D
   should be minimal; and

   (c) undue delay may well result in impairment of
   the ability of the accused to defend himself,
   whether on account of .death, disappearance or
   non-availability of witnesses or otherwise.             E

        (4) At the same time, one cannot ignore the
  fact that it is usually the accused who is interested
  in delaying the proceedings. As is often pointed
  out, "delay is a known defence tactic". Since the        F
  burden of proving the guilt of the accused lies
  upon the prosecution, delay ordinarily prejudices
  the prosecution. Non-availability of witnesses,
  disappearance ofevidence by lapse of time really
  work against the interest of the prosecution. Of         G
  course, there may be cases where the prosecution,
  for whatever reason, also delays the proceedings.
  Therefore, in every case, where the right to speedy
  trial is alleged to have been infringed, the first
                                                           H
430 .     SUPREME COURT REPORTS                      [2015] 2 S.C.R.


A        question to be put and answered is - who is
         responsible for the delay? Proceedings taken by
        either party in good faith, to vindicate their rights and
         interest, as perceived by them, cannot be treated as
        delaying tactics nor can the time taken in pursuing
B
        such proceedings be counted towards delay. It goes
        without saying that frivolous proceed in gs or
        proceedings taken merely for delaying the day of
        reckoning cannot be treated as proceedings taken in
c       good faith. The mere fact that an application/petition
        is admitted and an order of stay granted by a superior
        court is by itself no proof that the proceeding is not
        frivolous. Very often these stays are obtained on ex
        parte representation.
D
              (5) While determining whether undue delay has
        occurred (resulting in violation of Right to Speedy
        Trial) one must have regard to all the attendant
        circumstances, including nature of offence, number
E
        of accused and witnesses, the workload of the court
        concerned, prevailing local conditions and so on -
        what is called, the systemic delays. It is true that it is
        the obligation of the State to ensure a speedy trial
F       and State includes Judiciary as well, but a realistic
        and practical approach should be adopted in such
        matters instead of a pedantic one.

            (6) Each and every delay does not necessarily
G       prejudice the accused. Some delays may indeed
        work to his advantage. As has been observed by
        Powell, J. in Barke 33 L Ed 2d 101 "it cannot be
        said how long a delay is too long in a system
        where justice is supposed to be swift but
H
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 431
        ITS SECY. [VIKRAMAJIT SEN, J.]

  deliberate". The same idea has been stated by       A
  White, J. in U.S. v. Ewell 15 L Ed 2d 627 in the
  following words:

       ' ... the Sixth Amendment right to a speedy
  trial is necessarily relative, is consistent with   B
  delays, and has orderly expedition, rather than
  mere speed, as its essential ingredients; and
  whether delay in completing a prosecution
  amounts to an unconstitutional deprivation of
  rights depends upon all the circumstances.'         C

       However, inordinately long delay may be
   taken as presumptive proof of prejudice. In
   this context, the fact of incarceration of
   accused will also be a relevant fact. The          o
   prosecution should not be allowed to become
   a persecution. But when does the prosecution
   become persecution, again depends upon the
   facts of a given case.
                                                      E
      (7) We cannot recognize or give effect to,
  what is called the 'demand' rule. An accused
  cannot try himself; he is tried by the court at
  the behest of the prosecution. Hence, an
  accused's plea of denial of speedy trial cannot     F
  be defeated by saying that the accused did at
  no time demand a speedy trial. If in, a given
  case, he did make such a demand and yet he
  was not tried speedily, it would be a plus point
  in his favour, but the mere non-asking for a        G
  speedy trial cannot be put against the accused.
  Even in USA, the relevance of demand rule
  has been substantially watered down in Barker
  33 L Ed 2d 101 and other succeeding cases.
                                                      H
432     SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A          (8) Ultimately, the court has to balance and
      weigh the several relevant factors - 'balancing
      test' or 'balancing process' - and determine in
      each case whether the right to speedy trial has
      been denied in a given case.
B
            (9) Ordinarily speaking, where the court comes
      to the conclusion that right to speedy trial of an
      accused has been infringed the charges or the
      conviction, as the case may be, shall be quashed.
c     But this is not the only course open. The nature
      of the offence and other circumstances in a given
      case may be such that quashing of proceedings
      may not be in the interest of justice. In such a
      case, it is open to the court to make such other
D     appropriate order - including an order to conclude
      the trial within a fixed time where the trial is not
      concluded or reducing the sentence where the
      trial has concluded - as may be deemed just
      and equitable in the circumstances of the case.
E
          (10) It is neither advisable nor practicable to
      fix any time-limit for trial of offences; Any such
      rule is bound to be qualified one. Such rule cannot
      also be evolved merely to shift the burden of
F     proving justification on to the shoulders of the
      prosecution. In every case of complaint of denial
      of right to speedy trial, it is primarily for the
      prosecution to justify and explain the delay. At the
      same time, it is the duty of the court to weigh all
G     the circumstances of a given case before
      pronouncing upon the complaint. The Supreme
      Court of USA too has repeatedly refused to fix
      any such outer time-limit in spite of the Sixth
      Amendment. Nor d_o we think that not fixing any
H
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 433
        ITS SECY. [VIKRAMAJIT SEN, J.)

    such outer limit ineffectuates the guarantee of right   A
    to speedy trial.

          (11) An objection based on denial of right to
    speedy trial and for relief on that account, should
    first be addressed to the High Court. Even if the       8
    High Court entertains such a plea, ordinarily it
    should not stay the proceedings, except in a case
    of grave and exceptional nature. Such proceedings
    in High Court must, however, be disposed of on a
    priority basis.                                         C

      12. State of Punjab v. Chaman Lal Goyal (1995) 2
SCC 570 deserves mention, inter alia, because action was
initiated on 25.3.1992 and a Memorandum of Charges
was issued on 9.7.1992 in relation to an incident which D
had occurred on 1.1.1987. In the factual matrix obtaining
in that case, this Court reserved and set aside the High
Court decision to quash the Inquiry because of delay, but
directed that the concerned officer should be immediately
considered for promotion without taking the pendency of E
the Inquiry into perspective.

     13. It will be useful to recall that prior to 1973 an
accused could be detained for continuou~ and consecutive
periods of 15 days, albeit, after judicial scrutiny and F
supervision. The Cr.P.C. of 1973 contains a new proviso
which has the effect of circumscribing the power of the
Magistrate to authorise detention of an accused person
beyond period of 90 days where the investigation relates
to an offence punishable with death, imprisonment for life G
or imprisonment for a term of not less than 10 years, and
beyond a period of 60 days where the investigation relates
to any other offence. Drawing support from the
observations contained of the Division Bench in Raghubir
Singh vs. State of Bihar, 1986 (4) sec 481, and more so H
434         SUPREME COURT REPORTS               [2015] 2 S.C.R.


A of the Constitution Bench in Antulay, we are spurred to
  extrapolate the quintessence of the proviso of Section
   167(2) of the Cr.P.C. 1973 to moderate Suspension Orders
  in cases of departmental/disciplinary inquiries also. It
  seems to us that if Parliament considered it necessary that
B a person be released from incarceration after the expiry of
  90 days even though accused of commission of the most
  heinous crimes, a fortiori suspension should not be
  continued after the expiry of the similar period especially
  when a Memorandum of Charges/Chargesheet has not
C been served on the suspended person. It is true that the
  proviso to Section 167(2) Cr.P.C. postulates personal
  freedom, but respect and preservation of human dignity as
  well as the right to a speedy trial should also be placed on
  the same pedestal.
0
             14. We, therefore, direct that the currency of a
      Suspension Order should not extend beyond three months
      if within this period the Memorandum of Charges/
      Chargesheet is not served on the delinquent officer/
E     employee; if the Memorandum of Charges/Chargesheet is
      served a reasoned order must be passed for the extension
      of the suspension. As in the case in hand, the Government
      is free to transfer the concerned person to any Department
F     in any of its offices within or outside the State so as to
      sever any local or personal contact that he may have and
      which he may misuse for obstructing the investigation
      against him. The Government may also prohibit him from
      contacting any person, or handling records and documents
G     till the stage of his having to prepare his defence. We
      think this will adequately safeguard the universally
      recognized principle of human dignity and the right to a
      speedy trial and shall also preserve the interest of the
      Government in the prosecution. We recognize that previous
H     Constitution Benches have been reluctant to quash
AJAY KUMAR CHOUDHARY v. UNION OF INDIA THR. 435
        ITS SECY. [VIKRAMAJIT SEN, J.]

proceedings on the grounds of delay, and to set time limits A
to their duration. However, the imposition of a limit on the
period of suspension has not been discussed in prior case
law, and would not be contrary to the interests of justice.
Furthermore, the direction of the Central Vigilance
Commission that pending a criminal investigation B
departmental proceedings are to be held in abeyance
stands superseded in view of the stand adopted by us.

15. So far as the facts of the present case are concerned,
the Appellant has now been served with a Chargesheet, C
and, therefore, these directions may not be relevant to him
any longer. However, if the Appellant is so advised he
may challenge his continued suspension in any manner
known to law, and this action of the Respondents will be
subject to judicial review.                                 D

16. The Appeal is disposed of in the above terms and we
desist from imposing costs.

Kalpana K. Tripathy                    Appeal disposed of.
                                                             E