B.C. Varma, J.
1. The following question has been referred to us for decision.
Whether while dismissing a bail application an order can be made to the effect that applicant cannot be released on bail on any term whatsoever till the disposal of the case against him
2. The question has arisen in the following circumstances. Applicant Ram Sahodar and Diganlal are being prosecuted for an alleged offence under Section 376, read with Section 34, Indian Penal Code. They applied for their release on bail before the Court of Session. Their application was rejected. They then came to this Court. By order, dt. 13-10-1984, passed in Misc. Criminal Case No. 2403 of 1984, Hon. Bhatt, J. rejected that application. However, while rejecting that application, the learned Judge observed:
There is no justification for grant of bail to the applicants-accused on any terms, whatsoever, till the disposal of the case against them, since there is already more than sufficient incriminating evidence, for their inculpation, in the investigation done so far.
Thereafter, the applicant again moved the Court of Session for his release on bail as till then the challan was filed in the Court. The application was again rejected. The applicant repeated his prayer for his release on bail before this Court and filed an application for that purpose. It is Miscellaneous Criminal Case No. 248 of 1985. When the matter came up for hearing before Hon. Shukla, J., he felt difficulty in re-considering the prayer in view of the aforesaid observations made by Hon. Bhatt, J. when he rejected the earlier application.
3. The issue relating to bail, as pointed out in Babu Singh v. State of U.P. : 1978CriLJ651 , is one of liberty, justice, public safety and burden on the public treasury. Krishna Iyer. J., who delivered the Judgment of the Court, emphasising the importance of liberty and noticing serious consequences coming out of refusing to take bail, observed:
Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial 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 glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental 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 Article 21 are the life of that human right.
It is true that there is Constitutional sanction behind punitive proceedings in order to achieve security of the State and the larger interest of the public. Even so, the personal liberty of an accused is fundamental and can be circumscribed only by some process sanctioned by 'law.
4. The power to release a person on bail during investigation, inquiry or trial is contained in Sections 436, 437, 438 and 439, which fall under Chapter XXXIII of the Criminal, P.C. 1973. Sections 436 and 437 appearing therein, in so far as are relevant for our purpose, read as under:
436. In what cases bail to be taken. -
(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail;
XXX XXX XXX437. When bail may be taken in case of non-bailable offence.- (1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
XXX XXX XXX(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
Requirement of these provisions is that a person accused of any offence other than non-bailable offence has to be released on bail if he is prepared to furnish bail at any stage of proceedings before the Court. On the other hand, those accused.of non-bailable offence may be released on bail; where however the offence charged is punishable with death or imprisonment for life and if it appears to the Court that there are reasonable grounds, for believing that he is guilty of such an offence, he shall not be so released. According to Sub-section (2) of Section 437, the accused shall be released on bail at any stage of investigation, inquiry or trial, as the case may be, if there are not reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt. Section 438 provides for release of a person on bail in the event of his arrest for having committed a non-bailable offence. Section 439 gives special powers to High Court or Court of Session in regard to release of an accused on bail and provides that any person accused of an offence and in custody be released on bail and that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.
5. The above provisions do indicate that ordinarily a person arrested or taken into custody, if offers to be released on bail, may be so released. The release may be refused only in cases where the offence is punishable with death or imprisonment for life and that too when there appear reasonable grounds for believing that.he has been guilty of such an offence. It may also be seen that in case where person is accused of a bailable offence, bail can be taken at any stage of proceedings and where a person is accused of non-bailable offence, bail may be taken at any stage of investigation, inquiry or trial when reasonable grounds do not exist for believing that he had committed that offence but sufficient grounds exist for further inquiry into his guilt. It is, therefore, clear that bail can be taken not only at initial stage but also at subsequent stages of the proceedings in case of bailable offence and during investigation, inquiry or trial, as the case may be, in case of non-bailable offence. Significantly, Chapter XXXIII does not contain any provision prohibiting subsequent applications for release on bail after an application for that purpose has earlier been rejected. There also does not appear to be any provision under this Chapter or anywhere else in the Code authorising a Court to put a clog on such subsequent applications where one such application has been earlier rejected. Instead, the use of the words 'at any stage of proceedings...inquiry, investigation or trial, give a contraindication. Circumstances may change and a person earlier found not entitled to be released on bail, may subsequently become so entitled due to those changed circumstances. Say, an accused being tried on a charge of murder, applies for his release on bail. The application may be rejected before trial as Court may find that the documents filed under Section 173, Criminal P.C. contain statement of persons claiming to be eye-witnesses and thus there may appear to the Court reasonable grounds for believing that he is guilty of that offence. Later, when the trial proceeds, those witnesses may not support the prosecution in Court and as is occasionally noticed, may turn hostile to the prosecution and thus may disappear the very foundation for believing that he has been guilty of that offence. This may give rise to an occasion for re-consideration of the bail application during the pendency of that case itself, and the court may, under these changed circumstances, if moved in that behalf, form an opinion that reasonable grounds do not exist for believing that he is guilty of that offence although the trial may till then be not over. The accused in that event shall become entitled to be released on bail. To us, therefore, it appears that the Court will not be acting legally if it directs while rejecting an application for release on bail, that the accused shall not be released during the pendency of the case. To our mind, making of such an order will not only be contrary to the express provisions contained in Sections 436 and 437 and 439 of the Criminal P.C., but will also tantamount to taking away the personal liberty of the accused as it has ho sanction of 'law' behind it.
6. In Babusingh's case 1978 Cri LJ 651 (supra), the Supreme Court was considering a second application after one such application was earlier rejected. It was then ruled that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, and further developments. It was also held that.the Court is not barred from a second consideration at a later stage and that an interim direction is not a conclusive adjudication and that an updated reconsideration is not overturning an earlier negation. Second application was entertained. This dictum leaves no manner of doubt that the law does not prevent second consideration of an application for bail on rejection of the first one. The earlier rejection is not conclusive. This also indicates that while rejecting an application for bail, the Court will not be within its competence to bar consideration of a subsequent bail application which may be necessitated on account of subsequent events and developments.
7. The appendage to the order refusing to lake the bail of the accused, as one under consideration cannot be allowed to be defended under the garb of 'exercise of judicial discretion'. Arbitrary exercise of power borders perversity. It offends against the very 'rule of law' which is supreme and which is the pivot of our Constitution. In Jaisinghani v. Union of India : 65ITR34(SC) , the Supreme Court observed that the absence of arbitrary power is the first essential of the rule of law upon which our whole Constitutional system is based. The court said:
In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules.... Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes (1770) 4 Burr 2528 at P. 2539 means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful.
This decision in Jaisinghani's case (supra) was applied by another Division Bench of this Court, in Madanlal Pande v. District Magistrate, Shajapur : AIR1977MP37 , to compel performance by the District Magistrate of his duties as public official even though the decision to be reached on performance of that duty was within his discretion.
The Court will, therefore, be not within its competence in exercise of its discretion to do that which the law does not sanction.
8. In view of what we have said above, our answer to the question referred would be as follows:
While dismissing a bail application, it is not permissible to make an order to the effect that the applicant cannot be released on bail on any terms whatsoever till the disposal of the case against him.