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Report No. 35

Topic Number 33

Apprehension about discretion

632. Apprehension about discretion.-

The apprehension expressed in some of the replies, that the leaving of the discretion to the Court makes the actual event arbitrary, does not seem to constitute a very strong argument. In the first place, the discretion is exercised, and expected to be exercised judicially, and not on whim or caprice. In the second place, if in a particular case a miscarriage of justice occurs by reason of the improper exercise of the discretion, the High Courts would always be there to correct such miscarriage. Thirdly, it may be pointed out that even in England the Royal Commission did not favour the position then existing, under which the sentence of death was mandatory for murder1.

1. R.C. Report, p. 214, para. 611.

633. As was observed by Lord Halsbury L.C.1-

"An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and "discretion" means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion2; according to law, and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself3.".

1. Sharp v. Wakefield, 1891 AC 173 (179) (HL).

2. Roobe's case, 5 Pep 100 a.

3. Witness v. Rastali 41 TR 757.

634. If, therefore, a discretion is to be left, it should be a real and effective discretion, not trammelled by conditions laid down for all times, all places, all offences and all offenders.

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