GUDIKANTI NARASIMHULU AND ORS.

PUBLIC PROSECUTOR, HIGH COURT OF

ANDHRA PRADESH

December 6, 1977

(V. R. KRISHNA IYER, J. (IN CHAMBERS)]

Bail-Grant of bail-Practice and Procedure 1n the matter of granting of 1bail to an accused person pending the hearing of an appeal-Guidelines for granting bail-Order XLVll Rule 6 rlw Order XX/ Rules 6 and 27 of the

Supreme Court Rules, 1966.

the petitioners who were convicted by the Andhra Pradesh High Court for

he offences u/ss. 148, 302, 302 J 149 I.P.C., in •n appeal by the state against

their acquittal, surrendered themselves to curial custody as required under Order XXI of the Supreme Court Rules 1966, before preferring the statutory appeal u!s 2(c) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act 28 of 1970 r/w S. 379 Crl. P. C. 1973. They were on bail at the trial .and appellate stages and were also on parole after their surrender pursuant to the High Court Judgment.

Allowing their bail petition the Court,

HELD : 1. The issue of "Bail or Jail "-at the pretrial or post-conviction stage-although largely hinging on judicial discretion, is one of liberty, justice, 1JUbliC safety and burden Of the public treasury, all of which insist that a deve

loped jurisprudence of bail is integral to a socially sensitized judicial J?rocess.

[372 (jj

2. Personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four word~' <Jf Art. 21 are the life of that human right. [373 A] ·

3. The significance and sweep of Art. 21 make the deprivation of liberty, -ephemeral or enduring, a matter of grave cone<:m and permissible only when the law authorising it is reasonable, even hande, d and geared to the goals of community good and State necessity spelt out in Art.

19. 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. [376 D-E]

4. All deprivation of liberty is validated by social defense and individual F correction along an anti criminal direction. Public justice is central to the whole of bail law fleeing justice must be forbidden but punitive harshness should be minimised.

Restorative devices to redeem the man, even through community service, meditating 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 G cripple but to protect. Such is the holistic /urisdiction and humanistic orientation invoked by the judicial discretion corre ated to the values of our constitu~

fon. [376 H. 377 A]

5. The principal rule to guide release on bail sh0utd be to secure the pre~ sence of the applicant who seeks to he liberated, to take judgment and serve

'sentence in the event of the court punishing him with imprisonment.

In this perspective, relevance of considerations is regulated by their ncxos with the likely absence of the applicant for fear of a severe sentence. [375 CDl

&'. The vital considerations are c:-(a) The nature of charge, the nature of the evidence and, the punishment to which the party may be liable, if convic tcd, or conviction i~ confirmed. When the crime charged is of the highest ll-1114SCJ/77

magnitut.le 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 cause of justice 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 circumstances; and whether the petitoner'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 inter~ mediate acquittal has pertinence to a bail plea when the appeal before this court pends. The ground for denial of provisional release, becomes weaker when a fair finding of innocence has been recorded' by one court; ( e) Whether the accused's safety may be inore in prison than in the vengeful village where feuds have urovoked the violent offence and (f) the period in prison already spent and the prospect of delay in the appeal being heard and disposed of.

[374 G-H, 375 D, E, H, 376 A, B, C, E, F. 377 B-H]

7. Collrts should soberly size up P'llice exaggerations of prospective misconduct of the accused, if enlarged, lest danger of excesses and injustice creep subtl.y 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 a complacement refusal.

[377 D-E]

8. 1'o answer the test of reasonableness, subject to the nee<l for securing the presence of the bail applicant the court must also weigh the contrary factors viz. (i) the better chances which a man on bail has to prepare or present his case that are remanded in custody, (ii) promotion of public justice, (iii) the considerable public expense 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.

[376 E-G]

9. In the instant case, in view of the circumstances that (a) the petitioners were free when on bail during the trial and free when on parole by the state,

(b) they did not abuse the trust reposed by the court or the State during the said periods, (c) they were aC<1uitted by the trial court (d) four other fellow accused were enlarged on bail ( e) they have suffered imprisonment around a year and (f) a reasonable prediction of the time of the hearing of the appeal may take the court to a few years ahead, the court directed the petitioners to be enlarged on bail on terms.

(378 CH] CRIMINAL APPELLATE JURISDICTION : Criminal Misc. Petition No. 1443 of 197'!.

(APPLICATION FOR BAIL)

F P. Ram Reddy and M. S. Rama Rao for the Appellants.

G. N. Rao for the Respondent.

ORDER

KI<ISHNA IYER, J. "Bail or jail?"- at the pre-trial or post-conviction stage-belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. 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 of the public treasury, all of which insist that a developed jurisprudence of bail i.s integral to a socially sensitized judicial process.

A Chamber judge in this summit court I have to deal with this uncanalised caseflow, ad hoc response to the docket being the flockeriqg candle light. So it is desirable that_ the subject is disposed of on basic principle, not improvised brevity drapect or discretion.

Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21

...

I ' "i' /

GUDIKANTI v. PUBLIC PROSjlCUTOR (Krishna Iyer, J.) 3 73 A

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 fundamental right.

After all, personal liberty of an accused or convict . is B 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. bven ; o, having regard to the solemn issue involved, deprivation. of personal C freedom; ephemeral or enduring, must be founded on the most serious collliderations relevant to the welfare obji:ctives of society, specified in the O:mstitution. What, then, is 'judicial discretion' in this bail context ? In the elegant words of nenjamin Cardozo.

"The judge, even when he is free, is still not wholly free.

He is not to innovate at pleasure. He is rtot 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 principh; s.

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 b) system, and subordinated to 'the primordial nec"•- sity of order in the. social life. Wide enough in all conscience is the field of discretion that remains."

[!he Nature of the Judicial Process-Yale University Press

(1921)].

Even so it is useful to notice the tart terms of Lord Camden 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 the best, it is oftentimes caprice; in the worst, it is every vice, folly and p[1ssion to which human nature is liable ... " ( 1 Bovu. Law Diet. Rawles' III Revision p. 885-quoted in JUdicial Discretion~National Colleges of the State Judiciary, Reno, Nevada p. 14).

Some jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless, the vestingn of discretion i5 the unspoke11 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 he arbitrary, vague and , ,, fancif11l, but legal and regular. (Attributed to Lord Mansfield, Tingley

v. Bolby, 14 N.W. 145)

. "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 principle.s

of law."

[Judical Discretion, (ibid) p. 33]

B 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 grant 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 C reminder, 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 !be 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 D 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 oc refused is whether it is probable that the defendant wiH G 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 accuiation.. ·

( 3) The severity of the punishment which convictioa will entail ...

( 4) Whether the sureties are independent, or indemni- A fied by the accused person. . ... "

(Mod. Law Rev. ibid. p.' 53-Archbold, Pleading Evidence and Practice in Criminal Cases, 36th edn., London, 1966 para 203)

Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Art. 21 and 19 before following diffuse observations and practices in the E11gilish 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, as has been pointed out by Dr. Bottomley. (The Granting of Bails : Principles and Practices : Mod. Law Rev. ibid, p. 40

to 54).

Let us have a glance at the pros and cons and the true principle 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 judgment and serve sentence in the event of the court punishing him with D 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 conviction 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 E the presence of the convict at the stage of judgment, should he be enlarged. (Mod. Law Rev. p. 50 ibid, 1852 I.E. & B. 1). Lord Campbell CJ concurred in this approach in that case and Coleridge J. set down the order of priorities as follows :

"I do not think that an accused party is detained in custody because af 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 is a very important eleent in considering wheter . the party, . if admitted to bail, would appear to 1take his tnal; and I thmk that in coming to a detennination 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 pnsoners of the truth of the charge, and the punishment of the offence

ii, by Jaw, 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

376 SUPl\EME COURT REPORTS

(1978) 2 S.C.R.

A 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. 50.]

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 applyipg for bail to find whether he has a bad recordparticularly a record which suggests that he is likely to commit serious "ffences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to

expw1t tne 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 Art. 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 Art. 19.

Indeed, the -considerations I have set out as criteria are germane to the constitutional proposition I have deduced.

Reasonableness postulates intelligent care und 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 shoukl 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 disturbance can arise, is not a negligible consideration.

Equally important is the deplorable condition, verging on the inhuman, of our subjails, that the unrewarding cruelty and xpensive 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 defence and individual correction along an anti-crimi10al direction. Public justice is central to the whole scheme of bail law.

Fleeing justice must be forbidden but punit've 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 A while on judicially sanctioned 'free enterprise,' should be provided against No seeker of jµstice shall play confidence tricks on the court or c-0mmunity.

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 acq4itted 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 the accused to jump the gauntlet . of justice is less, having enjoyed the confidence of the court's verdict once.

Concurrent holdings of guilt have the opposite effect.

Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding-if that be so-of innocence has been recorded by one court. It may not 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 ve 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 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 a complacent reltusal.

Realism is a component of humanism which is the heart of the legal system. We come across cases where parties have aready 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, F last a whole file, in practice it hardly 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 regard to the suffocating G 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 unmentfonable vices that humanizing interludes of parole are part of the compassionate ":onstitutionalism of our system.

. c

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 necc:Ssitating that course.

The corrective instinct of the law plays upon release orders by strepping on to them protective and curative conditions.

Heavy bail from poor man is obviously wrong.

Poverty k 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--0nce awareness of matters of relevance fs 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 have set out at great length which in my view bear upon the grant or refusal of bail warriclnt enlargement of the

petitioners in the facts of the present case. It is a fact that he has been acquitted along with others in the trial court although that acquittal has been set aside in the High Court. Further, there is no suggestion possible that during the time they were on bail-and they were free during the pendency of the trial and wlien the appeal was pending in the High Court-.-that they abiJsed the trust reposed by the Court allowing them to be at large.

Moreover, four of the fellow accused have been already enlarged on bail by this Court and an attempt at cancellation thereof rebuffed. ·

The petitioners have suffered imprisonment around a year and a reasonable prediction of the time of the hearing of the appeal may take us to a few years ahead.

Which means that incarceration during that period may possibly prove an irrevocable injury if the appeal ends in their favour. The Magistrate's report about the conduct of the petitioners while in sub-jail is not uncomplimentary.

Counsel for the respondent-State rightly stresses that the village is. factious and that the petitioners are activists in one faction. The potentiality of community peace being disturbed should therefore be obviated by proper safeguards. It is significant that the State itself has released the petitioners on parole and there is nothing to suggest that while on such spell of freedom anything injurious to public interest or public peace or public justice has _been committed.

The cumulative resnlt of these considerations persuades me to direct the petitioners to be enlarged on bail, namely, their ?WD bond t? appear to receive sentence in the event of an adverse verdict from this Court.

However they will be put on conditions which counsel for the petitioners accepts. The petitioners will keep out of the village Gonegondla except for one day in a week. They will be allowed to enter the village on that day only after reporting to the police at the Gonegondla police station. They shall leave the villa(!:e the next <la¥ and they .will. repor_! to the police when they are departmg from the village. This will heli> the !}Olice to have a vigilant eye on the petitioners and prevent them

GUDIKANTI v. PUBLIC PROSECUTOR (Krishna lyer, !.) 3 79

\ from doing mischief inside the village and incidentally will help the A petitioners carry on their agricultural operations by once-a-week supervision.

It is commendable, if the petitioners choose to report daily before any therapeutic centre for psychic reformation, such as a transcendental meditation centre.

This is left to their option but may eventually prove to their good.

The petition is disposed of accordingly.

S.R.

Petition allowed.