Report No. 36
23. The reply of the Law Member was clear,-may be quoted:-
"Dr. Sir Mian Mohammad Shafi:-Sir, it was said that the sole object of arrest is to prevent a person from running away or from protracting or delaying the trial. As a general rule that is a perfectly legitimate criterion. I admit that that is the main purpose of arrest. But cases might be conceived where other considerations also come in. Let me give but one case which is not only possible but which we, some of us who have practised at the Bar long enough, can well conceive. A man falls out with two brothers. Bitter enmity subsists between that one man on the one side and the two brothers on the other. He has a fight with these two brothers intending to kill them, but succeeds only in killing one and injuring the other He is arrested by the police.
There is ample evidence against him to prove that he murdered one of the two brothers, and he knows himself that he cannot escape. He knows that he is sure to be convicted and hanged. Well, now, in a case like that, is it not conceivable that he would like to be released on bail in order to go and kill the other brother also before he is hanged? (Laughter). With all deference, I am afraid that my Honourable friends from the South do not know what stuff people of the North are made of.
It is perfectly conceivable that that man may be anxious to be released on bail in order to achieve the very object with which he assaulted the two brothers, which object he failed to achieve in the first instance, and succeeded only in killing the one and simply injuring the other brother; and knowing that he will be hanged, before he is actually hanged, he may take advantage of his release on bail to go and kill' the other brother. Sir, with all deference it is hardly right to say that the sole consideration is his presence at the next date of hearing. There may be other considerations also which come in cases of this kind.
It seems to me that taking all the circumstances into consideration, seeing that admittedly the clause as we propose it is a decided advance, a decided improvement in the existing law, seeing also that the clause as we propose it gives the fullest discretion to the Magistrate in even the most serious class of cases in certain instances to release on bail and prohibits release on bail only when circumstances or facts have been established which have led the Magistrate to believe or have reason to believe that the accused has committed the offence-only in this very narrow circle is he prohibited from releasing the accused on bail in this most serious of all crimes,-I submit that the Legislature ought not to go beyond that, that the Legislature should limit in such cases the discretion of the Magistrate in so far as release on bail in non-bailable cases is concerned.".
24. The matter seems to have attracted considerable attention in India, in various Editorial and other notes in the Calcutta Weekly Notes1.
1. For example, see 2 CWN (Journal) 32; 16 CWN (Journal) 286; 11 CWN (Journal) 214; 12 CWN (Journal) 253 and 13 CWN (Journal) pp. 3, 5 and 9.
25. As we have already stated,1 case-law in India does not rule out other considerations while deciding the grant of bail.
1. Para. 21, supra.