minal Misc
PetitionNo 191 of 1978
in the Matter of CRIMINAL APPEAL No 274 of 1977 R k Jain for the Petitioner
D P Uniyad and O P Rana for the Responent The Order of the Court was delivered by 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 sitting as a Chamber Judge in Gudikanti Narasihmalu and others vs Public Prosecutor Govt
of AP1 had considered this question at some length and since the principles set out herein commend themselves to uswe are proceeding on the same lines and are inclined to reach the same conclusion
Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail
Right at the beginning 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 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 RK 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 s302 IPC 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 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 decision  Speedy justice is a component of social justice since the community as a whole is concerned in the criminal being condignly and finaly punished within a reasonable and the innocent being absolved from the incordinate ordeal of criminal proceedings
This is 1 1978 2 SCR371 780 by the way although it is important that judicial business management by engineering not tinkering so as to produce efficient expedition is in urgent high priority item on the agenda of court reform to be 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 the petitioners had been free during the pendency of the appeal
Certain other pregnant particulars deserve special mention
All the petitioners 1 to 5 are the entire male members of a family and one point mentioned by Shri Jain is that all of them are in jail
Their defence in this Court may therefore be jeopardised
Another factor equally meaningful is that there is nothing indicated before us to show that during the long five years when the petitioners had been out of prison pending appeal 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 the village not an unusual phenomenon in rural India riven by rivalry of castes sects and gens
This is of course a survival of primitive tribalism as it were but cannot be wished away 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 burden on the public treasury all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process
As Chamber Judge in the summit court I have to 781 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 article 21 that 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 glamorise impressionistic orders as discretionary may on occasions make a litigative gamble decisive of a fundamental 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 article 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 The judge even when he is free is still not wholly free
He is not to innovate at pleasure
He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness
He is to draw his inspiration from consecrated principles
He is not to yield to spasmodic sentiment to vague and unregulated benevolence
He is to exercise a discretion informed by tradition methodized by analogy disciplined by system and subordinated to the primordial necessity of order in the social life 
Wide enough in all conscience is the field 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
 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 782 discretion when applied to a court of justice means sound discretion guided by law
It must be governed by rule not byhumour it must not be arbitrary vague and fanciful but legal and regular
Attributed to Lord Mansfield Tinglay vs Dolby 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 by a restraint on liberty we have to proceed to see what are the relevant criteria for granty or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside but leave has been granted by this Court to appeal against the acquittal
What is often forgotten and therefore warrants reminder is the object to keep a person in judicial custody pending trial or disposal of an appeal
Lord Russel CJ 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 withhold as a punishment but that the requirements as to bail are merely to secure the attendance of the prisoner at trial Rv
Rose 1898 18Cox CC
717 67 LJOB 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  Mod
Law Rev p 49 ibid In Archbold it is 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 783 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 ibid
P 53 Archbold pleading Evidence and Practice in Criminal Cases 56th edn London1966 para 203 Perhaps this is an overly simplistic statement and we must remember the constitutional focus in article 21 and 19 before following diffuse observations and practices in the English system
Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles has been pointed out by Pr
Bottomley
The Granting of Bail Principles and Practices  Mod
Law Rev ibid p40 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 en larged
Law Rev p 50 ibid 1952 IE  BI
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 necessary to ensure his appearance at trial It 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 784 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
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 75 Mod
Law Rev ibid p 54 Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice
It is not only traditional but rational in this context to enquire into the antecedents of a man who is a lying for bail to find whether he has a bad record particularly 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 basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance
The significance and sweep of article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable even handed and geared to the goals of community good and State necessity spelt out in article 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 785 disappearance or disturbance can arise is not a negligible consideration
Equally important is the deplorable condition verging on the inhuman of our sub jails that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release 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 peace by tampering with evidence intimidating witnesses or committing offences 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 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 where the fact stares us in the fact that a fair finding if that be so innocence has been recorded by one court
It may be conclusive for the judgment of acquittal may be ex facie wrong the likelihood of desperate reprisal if enlarged may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence
It depends
Antecedents of the man and socio geographical circumstances have a bearing only from this angle
Police exaggerations 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 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 786 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 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 spells of parole under controlled conditions so that fear that the full freedom if bailed out might be abused may be eliminated by this experimental measure punctuated by reversion to prison
Unremitting insulation in the harsh and hardened company of prisoners leads to many unmention able 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 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 expressed by Justice Bhagwati speaking for the Court in Kashmira Singh vs The State of Punjab1
The appellant contends in this application that ending the hearing of the appeal he should be released on bail
Now the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under section 302 of the Indian Penal Code
The question is whether 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 guilty and sentenced to life imprisonment he should not be let loose so long I as his conviction and sentence are not set aside but the underlying postulate of this practice was that the appeal of such person 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 1  at 2148
787 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 com pensate 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 overwhelmed with a feeling of contribution while acquitting such a person after hearing the appeal Would it not be an affront to his sense of justice Of what avail would the acquittal be to a person who has already served out his term of imprisonment or at any rate a major part of it  It is therefore absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time the Court should ordinarily unless there are cogent grounds for acting otherwise release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence Having regard to this constollation of considerations carefully viewed in the jurisprudential setting above silhourted we are of the view that subject to certain safeguards the petitioners are eligible to be enlarged on bail
The endemic pathology of factious scrimmage and blood shed should be preempted by suitable safeguards even if we are inclined to bail out the petitioners
So we direct that the petitioners be released on their own recognisances in a sum of Rs 5000 each with one surety for each in a like sum subject to two conditions viz firstly that the petitioners shall not enter Bharaiyam village which is alleged to be the hot bed of Plan clashes according to the prosecution and secondly the petitioners shall report at the Tandiawan Police Station District Hardor once every week
We direct the Sub Inspector of Police station concerned to see that both the conditions are observed
In the event of breach of either condition the prosecution will be at liberty to move this Court for cancellation Of the bail hereby granted


Summary:
All the petitioners were charged with the offence of murder us 302 IPC but all of them were acquitted by the Sections Judge on 4 11 1972
The State successfully appealed against the acquittal and by its judgment dated 20 5 1977 the High Court while reversing the findings of the Sessions Court held all of them guilty and sentenced them all to life imprisonment
The petitioners came up to the Supreme Court exercising their statutory right of appeal
Pending the disposal of the appeal they moved an application for bail which was rejected on 7 9 1977
The petitioners moved another application for bail
Granting the bail subject to fulfilment of conditions imposed the Court HELD  1
An order refusing an application for bail does not necessarily preclude another on a later occasion giving more materials further developments and different considerations
While it is a circumstance which the Courts surely must set store Courts are not barred from second consideration at a later stage
An interim direction is not a conclusive adjudication and updated reconsideration is not overturning an earlier negation
779 D E 2
The significance and sweep of article 21 make the deprivation of liberty ephemeral or enduring a matter of grave concern and permissible only when the law authorising it is reasonable even handed and geared to the goals of community good and State necessity spelt out In Article 19
Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice to the individual involved and society affected
784 E F 3
Personal liberty deprived when bail is refused is too precious a value of ourconstitutional system recognised under article 21 that the curial power to negateit is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community
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 article 21 are the life of that human right
781 A B 4
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
Feeling justice must be forbidden but punitive harshness should be minimised
Restorative devises 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 offences while on judicially sanctioned free enterprise should be provided against
No seeker of justice shall play confidence tricks on the Court or community
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
785 B C 5
The principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated to take judgment and serve sentence in the event of the Court punishing him with imprisonment
In this 778 perspective relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence
783 E The vital considerations are a The nature of charge the nature of the evidence and the punishment to which the party may be liable if convicted or conviction is confirmed
When the crime charged is of the highest magni tude 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 b whether the course of justices would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being c Antecedents of the man and socio geographical circumstance and whether or the petitioner s record shows him to be a habitual offender d When a person charged with a grave offence has been acquitted at a stage the intermediate acquittal has pertinence to a bail plea when the appeal before this Court pends
The grounds for denial of provisional releases becomes weaker when a fair finding of innocence has been recorded by one court e Whether the accused s safety may be
in prison than in the vengeful village where feuds have provoked the violent offence and f The period in
prison already spent and the prospect of delay in the appeal being heard and disposed of
783 A BF 784 C D 785 D E 786A Kashmira Singh vs State of Punjab   AIR  2148 Gudikanti Narasihmalu and Ors
vs Public Prosecutor Govt of AP  Reiterated
Tinglay vs Dolby  Rex vs Rose 1898 18 CC 717 67 QB 289 quoted with approval
Courts should soberly size up police exaggerations of prospective misconduct of the accused if enlarged lest danger of excesses and injustice creep subtly into the discretionary curial technique
Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into complacent refusal
The endemic pathology of factious scrimmage and bloodshed should be preempted by suitable safe guards
785 F G To answer the test of reasonableness subject to the need for securing the presence of the bail applicant the Court must also weigh the contrary factors like i the better chances which a man on bail has to prepare or present his case than one remanded in custody ii promotion of public justice iii the considerable public expenses in keeping in custody where no danger of disappearance or disturbance can arise and iv the deplorable condition verging on the inhuman of our sub jails
784 G H 785 A In the instant case the following significant factors frown  upon continuance of incarceration and favour provisional but conditional enlargement of the petitioners
a Petitioners 1 to 5 have suffered sentences in some measures having been imprisoned for about twenty months
b When the High Court entertained the appeal the State did not press for their custody for apprehended abscondence or menace to peace and justice
c The sixth Petitioner had been on bail in the Sessions Court and all the petitioners had been free during the pendency of the appeal
d There is nothing indicated to show that during the long five years when the petitioners had been out of prison pending appeal there had been any conduct on their part suggestive of disturbing the peace of he locality threatening any one in the village or otherwise thwarting the life of the community or the cause of justice and e All the petitioners 1 to 5 are the entire male members of a family and their remaining in jail will jeopardise their defence in this Court
 B E