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1978 (1) TMI 171 - SUPREME COURT

1978 (1) TMI 171 - SUPREME COURT - 1978 AIR 527, 1978 SCR (2) 777, 1978 (1) SCC 579 - Criminal Misc.Petition,No. 191 of 1978. CRIMINAL APPEAL No. 274 of 1977 - Dated:- 31-1-1978 - KRISHNAIYER, V.R. AND DESAI, D.A., JJ. R. k. Jain for the Petitioner. D. P. Uniyad and O. P. Rana for the Respondent JUDGEMENT KRISHNA IYER, J.- The petitioners have moved for bail setting out special grounds in support of the prayer. The State opposes on various grounds which we will presently set out. One of us sitti .....

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, we must mention that, at an earlier stage, their application for bail was rejected by this, 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 .....

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vember 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 tragic sojourn of five years 'for an appeal in a murder case. Our justice, system, even in grave cases, suffers from slow motion syndrome which is lethal to "fair trial"., whatever the ultimate decisio .....

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adically undertaken none to soon. Back to the necessary facts. On the High Court upsetting the acquittal, the petitioners have come up to this Court exercising their statutory right to appeal. The present petition, as earlier stated, is the second one for bail, the first having been rejected about six months ago. The petitioners 1 to 5 have suffered sentence in some Measure, having. been imprisoned for about twenty months. The sixth petitioner had 'been on bail in the Sessions Court and all .....

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ppeal, there had been any conduct on their part suggestive of disturbing the peace, of the locality, threatening anyone in the village or otherwise thwarting the life of the community or the course of justice. Nay more. When the High Court entertained the appeal, the State did not press for their custody for apprehended abscondence or menace to peace and justice. It must be noticed that the episode of murder itself is attributed as the outcome of a faction fight or feud between the two clans in .....

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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 o .....

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ized judicial process. As Chamber Judge in the summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived whom bail is value of our constitutional system recognised Under Art. 21 that curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for .....

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ic order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution. What then, is 'judicial discretion' in this bail context? In the elegant words of Benjamin Cardozo. "The judge, even when he is free, is still not wholly f .....

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ld of discretion that remains." (The Nature of Judicial Process-Yale University Press (1921). Even so it is useful to notice the tart terms of Lord Camdon that "the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends 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., Raw .....

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t 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 .....

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t in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withhold as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial." (R.v. Rose 1898-18Cox CC. 717: 67 LJOB 289quoted in 'The granting of Bail', Mod. Law Rev. Vol. 81, Jan 1968 p. 40, 48). This theme was developed by Lord Russel of killowen C. J., when he charged the grand jury at Salis .....

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stated that "The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial .... The test should be applied by reference to the following considerations (1) The nature of the accusation (2) The nature of the, evidence in support of the accusation (a) The severity of the Punishment which conviction will entail.... (4) Whether the sureties are independent, OF indemnified by the accused person ...." (Mod. Law Rev. ib .....

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ey. (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 .....

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ould secure the presence of the convict at the stage of judgment, should he be enlarged. (Mod. Law Rev. p. 50 ibid, 1952 I.E. & B.I.). Lord Campbell CJ concurred in this approach in that case and Coleridge J. down the order of priorities as follows "I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessa .....

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ion by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death". (Mod. Law Rev. ibid p. 50-51) it is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction o .....

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ticularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to expoit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basisof evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance. The significance and sweep of Art. 21 make the deprivation of liberty a matter of grav .....

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y 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 t .....

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lease justly sensible. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defense and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public pea .....

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etter insight into the ,rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before ;his Court pends ? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdict once. Concurrent holdings of guilt hive the opposite effect. Again, the ground for denial of provisional release becomes weaker wh .....

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ns of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and 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 .....

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e 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 regard to the suffocating crowd of dockets pressing before the few Benches. It is , not out of place to mention that if the State takes up a flexible attitude it may be possible to permit long spel .....

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each case. The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions. Heavy bail from poor men is obviously wrong. Poverty is society's malady and sympathy, not sternness, is the judicial response. Yet another factor which heavily tips the scales of justice in favour of release Pendente lite is the thought best expres .....

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this practice should be departed from and if so in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be' allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found gui .....

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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, .....

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