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TMI Blog1931 (4) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... onths later on 14th June 1929, and has been since in custody for nearly two years. The proceedings before the Magistrate started on 12th June 1929 and the order for commitment to the Court of Session was passed on 14th January 1930. In the Sessions Court the trial is still pending. About the middle of March 1931 the examination of the prosecution witnesses was finished and the statements of the accused persons were begun to be taken. So far, in the course of a month the statements of only six accused persons have been taken down. 5. There are about 30 accused persons and the number of defence witnesses cited is about 300. Mr. Nimbkar told us that he did not cite any witnesses and proposed to apply for his witnesses to be summoned after he has been let out on bail if such an order be made in his favour. 6. The prosecution examined nearly 300 witnesses. It can be taken without much argument that the examination of the defence witnesses will not take such long time as the prosecution witnesses have taken. But the Court will be addressed at length on behalf of the accused persons, some of whom are represented by counsel. This will take some time bearing in mind the fact that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (as amended in 1923) are framed the grant of a bail should be the rule and refusal of bail should be the exception. In the cases of a bailable offence, the law expressly says that if the accused person applies for bail he shall be released (Section 496). Section 497 applies to cases of nonbailable offences and there it is said that the accused person shall be released on bail except where there appears to be a reasonable ground for believing that ha has been guilty of a very heinous offence, viz, one which may be punished by either death or by transportation for life: Section 497 (1). Again it is laid down that, where at any stage of the investigation or trial, there are not reasonable grounds for believing that the accused person has committed a nonbailable offence, but there are sufficient grounds for further enquiry into his guilt, the accused shall be released on bail: Section 497 (2). 12. The principle to be deduced from Sections 496 and 497, Criminal P.C., therefore is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the trial is not in sight. 16. The learned Judge who has been hearing this case stated in this order refusing bail to the applicants, that he was not in a position to say definitely that there appeared (on the evidence before him) reasonable grounds for believing that the applicants had really been guilty of the offence, alleged to have been committed by them. He said this because, as already indicated, the evidence is so voluminous and relates to so many accused persons that it will not be probably possible for him to pronounce a definite opinion till he has heard the whole case and until he has heard the counsel on either side and the accused persons who have no counsel. Having regard to all the circumstances of the case, I consider that these are pre-eminently the cases in which bail should be granted. It is a pity that the applicants' applications before the Magistrate's Court and the Court of the learned Sessions Judge were not granted. The applicants ought to have been set free earlier. 17. I would therefore let out the applicants under certain conditions to be found in the order of the Court on bail to be furnished to the satisfaction of the District Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the applicant has therefore had an opportunity of presenting his application in person. It is only fair and just for me to say that he did not abuse the privilege given to him, but addressed to us a reasoned and proper argument appropriately and temperately expressed. In reply Mr. Kemp, the Special Public Prosecutor, in charge of the case, was heard. 25. The section of the Code of Criminal Procedure under which we are empowered to act is Section 498, the material portion of which reads as follows: The High Court or Court of Session may in any case, * * direct that any person be admitted to bail. 26. It is manifest that the discretion given to this Court, and also to the Court of Session, is unrestricted in any way by the terms of the statute. Two things follow from this, firstly that the discretion is one which must be judiciously exercised, and secondly that the Court has power if it does grant bail to grant it on such conditions as the circumstances of the case and the public interest may require. 27. It has been strenuously urged on both sides, from different points of view, that the discretion given by Section 498 is limited: by, or must in practice be limited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of the case when an accused person is first brought before a Court or his arrest or detention is first brought to the notice of the Court and there is little or no information before the Court upon which it can act. The appropriate provision applicable where the investigation or enquiry or the trial has been proceeding is Sub-section (2), Section 497. The importance of the distinction lies in the fact that the relaxation of the restriction on the powers of the Magistrate under Section 497 (1) effected by Act 18 of 1923 does not find place in Section 497 (2). 31. I will not however discuss further the distinction between the, two subsections of Section 497 because, as I have said, I am of opinion that in any event the discretion of this Court or of the Court of 'Session is not limited to the consideration set out in Section 497, but that that consideration is only material to be considered along with all the circumstances of the 'case. 32. A large number of oases have bean quoted to us by the applicant and four by the Special Public Prosecutor. I do not consider 'it necessary to deal with them in detail, but I merely state my conclusions. 33. As to the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans and standing of the applicant. (f) The danger of the alleged offence being continued or repeated, assuming that the accused is guilty of having committed that offence in the past. In view of the particular circumstances of the case and the nature of the evidence as to the particular conspiracy I do not consider there is serious danger of this. (g) The danger of witnesses being tampered with. In the present case the prosecution is closed. (h) Opportunity to the applicant to prepare his defence; (i) The fact that the applicant has already been some 22 months in jail, and that the trial is not likely to conclude for a further several months at least. I am of opinion that the accused should, on all these considerations weighed together and given their proper weight, be released on bail. This cannot of course be taken to suggest for a moment that I am prejudging the case against the applicant. His guilt or innocence is matter for future determination by the trial Judge. In a matter like the present, whether release on bail be refused or allowed, there can be no ground for the suggestion that the case is being prejudged. The only case in which such an assumption could pos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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