TMI Blog1978 (1) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... is, Court on September 7, 1977. But an order refusing an application for bail does not necessarily preciude another, on a later occasion, giving more materials, further, developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are, barred from second consideration' at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not over turning an earlier negation. In this view, we entertain the application and evaluate the merits pro and con. Shri R.K. Jain has brought to our notice certain significant factors which frown upon continuance of incarceration and favour provisional, perhaps conditional enlargement of the applicants. All the petitioners were charged with an offence of murder under s.302 I.P.C. but all of them were acquitted by the, Sessions Court as early as November 4, 1972. The, State successfully appealed against the acquittal and the High Court, reversing the, findings of the, Sessions Court, held all the petitioners guilty and sentenced them all to life imprisonment. This judgment was pronounced on May 20, 1977, after an unfortunately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay unless sociological therapeutics were applied. The pharmacopoeia of the Penal Code is no sufficient curative. Nevertheless, we have to remember the reality of the village feud and consequent proneness to, flare ups and recrudescence of criminal conflicts. Against this backdrop of social and individual facts we must consider the motion for bail. The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserve judicial, notice. The whole issue, going by decisional material and legal literature has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the, Supreme Court, has largely hinged on the hunch of the bench as on expression of 'judicial discretion'. A scientific treatment is the desideratum. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epends upon constitution temper and passion. In th e best, it is often times caprice; in the worst, it is every vice, folly and passion to which human nature is liable. . . . (I Bovu. Law Dict., Rawles' III Revision p. 685-quoted in Judicial Discretion-National College of the State Judiciary, Reno, Nevada p. 14). Some jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless, the vesting of 'discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by,humour, it must not be arbitrary, vague and fanciful but legal and regular. (Attributed to Lord Mansfield Tinglay v. Dolby, 14 N.W. 146) An appeal, to a judge's discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law. Judicial discretion, (ibid) p. 33 Having grasped the core concept of judicial discretion and the constitutional perspective in which the 'Court must operate public policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f correct legal criteria and sound principles, has been pointed out by Pr. Bottomley. (The Granting of Bail: Principles and Practices : Mod. Law Rev. ibid p.40 to 54). Let us have a glance around which other relevant factors must revolve.When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgement and serve sentence in the event of the court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle J. indicated, 'when the crime charged, (of which a convictions has been sustained) is of the highest magnitude, and the 'punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. (Mod. Law Rev. p. 50 ibid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19. Indeed, the, considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi-focal interests of justice-to the individual involved and society affected. We must weigh the contrary factors to answer the. test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to Prepare or present his case than one remanded in custody. And if public justice is to be promoted. mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injustice creep subtly into the discretionery curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissable in principle but shall not stampede the court into a complacent refusal. Realisim is a component of humanism which is the heart of the legal system. We come across cases where parties have already suffered 3, 4 and in one case (the other day it was unearthed) over 10 years in prison. These persons may perhaps be acquitted-difficult to guess. If they are, the injustice of innocence long in rigorous incarceration inflicted by the protraction of curial processes is an irrevocable injury. And, taking a pragmatic view, while life imprisonment may, in law, last a whole life, in practice it hardily survives ten years, thanks to rules of remission. Thus, at the worst, the prisoner may have to serve some more years, and, at the best, law is vicariously guilty of dilatory deprivation of citizen's liberty, a consummation vigilantly to be vetoed. So, a circumstance of some consequence, when considering a motion for bail, is the period in prison already spent and the prospect of the appeal being delayed for hearing, having regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would be disposed of within a measurable of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice, can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified ? Would it be just at all for the Court to tell a person : We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent ? What confidence would such administration of justice, inspire in the mind of the public ? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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