9911796707
TMI Blog1994 (7) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... preciate. We cannot forget that the right of the accused to move for bail, whether at the pre-trial, trial or post-trial stage, concerns his right to personal liberty under Article 21 of the Constitution and now that the said Article has been endowed with majestic magnitude, amplitude and plentitude in and since the decision of the Supreme Court in Maneka Gandhi, consideration of an application for bail has become all the more a matter of most anxious advertence and any improper handling thereof as a matter of easy insouciance or otherwise would offend the provisions of Article 21. Such an observation to the effect that the accused applicant is bound to remain in custody till the final disposal of the trial is also squarely against the provisions of section 437 of the Code of Criminal Procedure. The provisions of sub-section (2) and of sub-section (6) of section 437 make it irresistibly clear that even though an application for bail has been rejected at an earlier stage, the accused may be released on bail at any time thereafter. Even the first proviso to sub-section (1) of section 437 shows that a person who has become very much sick or infirm at a later stage may be released on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re would be wastage of Court's time and that judicial discipline requires that such matter must be placed before the same Judge, if he is available, for orders . In Buddhikota Subha Rao (supra), another two-Judge Bench of the Supreme Court observed, after referring with approval to Shahzad Hasan Khan (supra), that in such a situation the proper course... is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications and that such a practice or convention would prevent the abuse of the process of Court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a Court to secure an order to his liking . With respect, we have not been able to fully appreciate the import of these observations, even though we know that we are bound by the observations of the Supreme Court even if we fail to appreciate or understand the same. 4. It will be trite to say that the power and jurisdiction of a Judge to take cognizance of and to hear any case or classes of cases and to adjudicate and exercise any judicial power in respect of them is derived only and solely from the determination made by the Chief Justice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances and materials on record may go on changing during the progress of the investigation, inquiry or trial and an order of bail in favour of the accused may be eminently justified at a later stage even though at an earlier stage when the same was moved before another Judge or Bench, no such justification could be made out. 5. As already indicated, and as pointed by the Division Bench of the Calcutta High Court speaking through P.D. Desai, C.J., in Sohan Lal Baid, (supra), the Chief Justice of the High Court derives the power to make determination from the provisions of the Constitution and the other relevant laws and once such a determination has been made, the jurisdiction of the Judge who has the existing determination to hear applications for bail cannot at all be challenged only and solely on the ground that an earlier application to that effect by the same party was heard and disposed of by another Judge having the requisite determination at the relevant time. 6. We, therefore, do not think that it was not within the competence of the second learned Judge to hear and dispose of the present application for bail, even though the earlier application was heard and disposed of by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, no doubt that the said learned Judge could have also heard and disposed of the matter in his own way. 7. Coming to the merits, we would try to be brief because, as pointed out by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. 1978 CriLJ 502 , for a bail order - once awareness of matters of relevance is assured - the briefer the better, and prolixity may be fraught with unwitting injury to the prosecution or the defence. As pointed out further by the learned Judge, the question Bail or Jail - at the pre-trial or post-conviction stage-belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion . The learned Judge has reminded us of the dictum 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 often times caprice; in the worst, it is every vice, fully and passion to which human nature is liable. These observations, uncharitable and unpalatable as they are, may contain some truth, but only partial truth and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd there may be other circumstances differentiating one co-accused from the other, yet if the co-accused persons are otherwise equally placed, then there may be no good reason why an accused shall be denied bail where his co-accused has been released. This is also the view of Chief Justice Harries in Kamla Pandey (supra) where he said that I cannot see what real danger is in granting this man bail when his co-accused has been granted bail . We have also noted that, as the record now stands, the allegation against one accused, who has already been released on bail, is probably graver that the applicant before us. 9. It may be noted that while the learned Counsel for the State opposed the application for bail on the first date, on the second date, however, he has submitted that he has no objection to the grant of bail. Granting of bail, however, is a matter of serious concern to the Court which has got to carefully weigh and balance the interest of the society in proper prosecution of offences and the rights and interest of the accused and in such a case, while the Court may take note of any such concession made by the prosecution, it cannot govern itself solely thereby but must come ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
