Full Judgment Text
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PETITIONER:
GUDIKANTI NARASIMHULU AND ORS.
Vs.
RESPONDENT:
PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH
DATE OF JUDGMENT06/12/1977
BENCH:
KRISHNAIYER, V.R.
BENCH:
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
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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 presenceof 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
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 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 complacement 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
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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]
JUDGMENT:
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 post-
conviction 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 funda-
mental 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 principlcs. 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
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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
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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 :
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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 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 recordparticularly 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 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
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 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
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.
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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 of- innocence has been recorded by one
court. It may not be conclusive, for thejudgment 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
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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
coffective 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 sugges-
tion 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
areasonable 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 cummulative 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
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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.
380