Gudikanti Narasimhulu & Ors Vs.
Public Prosecutor, High Court of Andhra Pradesh [1977] INSC 228 (6 December
1977)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
CITATION: 1978 AIR 429 1978 SCR (2) 371 1978
SCC (1) 240
CITATOR INFO :
RF 1980 SC1632 (28,32) R 1984 SC1503 (9)
ACT:
Bail-Grant of bail-Practice and Procedure in
the matter of granting of bail to an accused person pending the hearing of an
appeal--Guidelines for granting bail-Order XLVII Rule 6 r/w Order XXI Rules 6
and 27 of the Supreme Court Rules, 1966.
HEADNOTE:
The petitioners who were convicted by the
Andhra Pradesh High Court for the offences u/ss. 148, 302, 302J 149 I.P.C., in
an 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, public safety and burden of
the public treasury, all of which insist that a developed jurisprudence of bail
is integral to a socially sensitized judicial process. [372 G] 2.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. [373 A] 3.The significance and sweep
of Art. 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 Art. 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. [376 D-E] 4.All deprivation of liberty is
validated by social defense and individual 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 cripple
but to protect. Such is the holistic jurisdiction and humanistic orientation
invoked by the judicial discretion correlated to the values of our
constitution.[376 H, 377 A] 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 perspective, relevance of considerations is regulated by
their nexus with the likely absence of the applicant for fear of a severe
sentence. [375 C-D] 6.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 11-1114SCI/77 372 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; (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 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 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 more 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. [374 G-H. 375 D, E, H, 376 A, B, C,E, V, 377 B-H] 7.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 a complace-ment refusal. [377 D-E] 8.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 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 acquitted 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 C-H]
CRIMINAL APPELLATE JURISDICTION : Criminal
Misc. Petition No.1443 of 1977.
(APPLICATION FOR BAIL) P.Ram Reddy and M. S.
Rana Rao for the Appellants.
G. N. Rao for the Respondent.
ORDER KRISHNA IYER, J. "Bail or jail
?"at the pre-trial or postconviction stage-belongs to the blurred area of
the criminal justice system and largely binges 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 is integral to a socially
sensitized judicial process. A Chamber judge in this summit court I have to
deal with this uncanalised case flow, ad hoc response to the docket being the
flockering candle light. So it is desirable that the subject is disposed of on
basic principle, not improvised brevity draped or discretion.
Personal liberty, deprived when bail is
refused, is too precious a value of our constitutional system recognised under
Art. 21 373 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 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.
"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 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 passion to which human nature is liable . .
." (I Bovu. Law Dict., Rawles' III Revision p. 885-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 vestingn 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, Tingley v. Bolby, 14 N.W. 145) 374 "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." [Judical 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 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 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 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 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.
(3) The severity of the punishment which
conviction will entail...
375 (4) Whether the sureties are independent,
or indemnified 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 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, 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 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 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 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 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 willful
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 376 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 applying 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 exploit 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 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 and
predicates that deprivation of freedomby 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 close to ours,
the function of bail is limited, 'community roots' of the, applicant
arestressed and, after the Vera Foundation's Manhattan Bail Project, monetary
surety ship 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 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 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 377
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 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 ofinnocence 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 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 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 cornplacent refusal.
Realism 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 hardly survives ten years, thanks to rules of remission. Thus, at
the worst, the prisoner may have to sere 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 unmentionable vices that humanizing
interludes of parole are part of the compassionate constitutionalism of our
system.
378 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 co-effective 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 have set out at great
length which in my view bear upon the grant or refusal of bail warrant
enlargement of the petitioners in the facts of the present case. If 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 when the appeal was pending in the High Court-that
they abused 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 many 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 comniitted.
The cumulative result of these considerations
persuades me to direct the petitioners to be enlarged on bail, namely, their
own bond to 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 village the next day and they wilt report to the
police when they are departing from the village. This will help the police to
have a vigilant eye on the petitioners and prevent them, 379 from doing
mischief inside the village and incidentally wilt help the 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.
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