TMI Blog1977 (12) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a funda- mental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Art. 21 are the life of that human right. The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said : I observe that 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 withheld 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 18 Cox CC. 717; 67 LJQD 289 quoted 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 Salisbury Assizes, 1899 : it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice. [(1899) 63 J.P. 193, Mod. Law, Rev. p. 49 ibid]. In Archbold it is stated that The proper test of whether bail should be granted or refused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial. It is a very important element in considering whether the' party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important : the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission 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 of the Court to be freed for the time being. [Patrick Devlin, The Criminal Prosecution in England London 1960 p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeting 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 peace by tampering with evidence, intimidating witnesses or committing offence while on judicially sanctioned 'free enterprise,' should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our constitution. Viewed from this perspective, we gain a better 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 this Court pends ? Yes, it has. The panic which might prompt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, punctuated by reversion to prison. Unremitting insulation in the harsh and hardened company of prisoners leads to many unmentionable vices that humanizing interludes of parole are part of the compassionate constitutionalism of our system. The basics being thus illuminated, we have to apply them to the tangled knot of specifics projected by each case. The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The coffective instinct of the law plays upon release orders by strapping on to them protective and curative conditions. Heavy bail from poor man is obviously wrong. Poverty is society's malady and sympathy, not sternness, is the judicial response. In this jurisprudential setting, I take up each case. Detailed ratiocination is not called for, since I have indicated the broad approach. And, for a bail order-Once awareness of matters of relevance is assured-the briefer the better, and prolixity may be fraught with unwitting injury. The focus is on personal freedom, barricaded or banned when it turns a menace to the fair administration of justice which is the foundation of a free society. The reasons which I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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