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Home > Human Rights > India: Revisiting Krishna Iyer’s Treatise on Bail In the Context of Tejpal’s (...)

India: Revisiting Krishna Iyer’s Treatise on Bail In the Context of Tejpal’s Case

by Shobha Aggarwal, 13 May 2014

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Benjamin Cardozo and Lord Camdon have brought to the fore as to what constitutes judicial discretion used by judges in the context of bail:

“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 principles.” —Benjamin Cardozo[1]


“..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, folly and passion to which human nature is liable …”—Lord Camdon[2]

Js. V.R. Krishna Iyer and Js. D.A. Desai through their judgement dated 31.01.1978 in Babu Singh and Others V. The State of U.P.[3] gave a scientific orientation to the crucial issue of bail. These judges accepted that hitherto the ferocity of the crime had eclipsed the real purposes of bail or jail; that other sensitive and sensible circumstances were ignored, and that the fate of applicants for bail in the higher judiciary had largely hinged on the hunch of the bench as on expression of judicial discretion.

The personal liberty of an accused or convict is fundamental as enunciated in Article 21 of the Constitution of India: No person shall be deprived of his life or personal liberty except according to procedure established by law, it can be denied only by procedure “established by law”. The last four words of Article 21 are the life-force of that vital human right.

The fundamental and constitutional right of bail is available to those accused, charged or convicted. The object to keep a person in judicial custody pending trial or disposal of an appeal is primarily to ensure the attendance of the person at trial. That’s the crux. Lord Russel, C.J. ruled:

"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."[4]

This theme was developed by Lord Russel of Killowen C. J., when he charged the grand jury at Salisbury Assizes, 1899:

" 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.”[5]

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 ..”

In all fairness Tejpal surrendered within the stipulated time on 30 November, 2013 after rejection of his anticipatory bail application and has been in custody since. There is not even an iota of doubt that his conduct while in custody has been exemplary. He is not digging a tunnel for jail break! A family man, he availed a few hours of granted leave to attend to his aged mother suffering from cancer. With mental faculties still about intact – in spite of the initial press trial and even ‘conviction’ by the corporate media at the behest of the powers that be – he is busy seeking information under the Right to Information Act about the total quantum of money spent on the exercise of investigating and prosecuting him. Even in custody he is abiding by the Article 51 A of the Constitution of India which states:

“It shall be the duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform.”

Tejpal is hardly the sort of person who if given bail would not make himself available for trial. He is unlikely to take the first flight to Timbuktu upon release on bail and disappear. It is in his own interest to get over with the trial fast. But he is a victim of the slow motion of the justice system – precisely the right candidate for bail.

Js. Krishna Iyer simplifies the guiding principle for those emotionally charged and are won’t to say goodbye to logic and common sense when bail is being prayed:

“The principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgement and serve sentence in the event of the court punishing him with imprisonment.”

Tejpal does not have a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. He is not a habitual offender. He qualifies for bail on this count too.

Js. Krishna Iyer makes an impassioned plea for public justice:

“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 demoted.”

Tejpal has prayed for bail so that he can prepare a better defence of himself. It is a fair enough ground for his bail.

Justices Krishna Iyer and Desai elaborate:

“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 sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.”

“Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’., whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in … the innocent being absolved from the inordinate ordeal of criminal proceedings.”

Even though the charge sheet, running into approximately 2846 pages against Tejpal was filed on 17 February, 2014, the charges are yet to be framed and the trial would take a long time as there are 159 witnesses. Tarun Tejpal’s bail plea was earlier rejected by the Goa Bench of the Bombay High Court on 14 March, 2014 on the ground that in view of the recent amendments to the criminal laws the applicant cannot claim to be released on bail on the ground that the trial will take a long time, since as per the new law the trial has to be completed within a period of two months from the date of filing of the charge sheet. This period of two months elapsed on 17 April, 2014. Tejpal is still in jail and the trial is yet to start!

Why should Tejpal and those similarly placed be denied bail when the trial is not complete within the stipulated period? If the legal system cannot assure that the time period would be adhered to why deny bail and liberty to the accused. Tejpal’s trial has not yet started and he has been incarcerated for about five months.

Forget Tejpal for a moment. He is just an accused. Juxtapose it with what even those already convicted by a court stand to avail if they go in appeal. This weighty issue has been dealt at length by Js. Bhagwati in his judgement dated 02.09.1977 in Kashmira Singh V. The State of Punjab[6]. The rationale of this practice – not to release on bail a person who has been sentenced to life imprisonment – could have no application where the Court is not in a position to dispose of the appeal for five or six years.

Js. Bhagwati makes it crystal clear that:

“It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him.”

Js. Bhagwati then proceeds on to raise five important questions:
1. Can the Court ever compensate him for his incarceration which is found to be unjustified?
2. What confidence would such administration of justice, inspire in the mind of the public ?
3. Would a judge not be overwhelmed with a feeling of contribution while acquitting such a person after hearing the appeal?
4. Would it not be an affront to his (judge’s) sense of justice?
5. Of what avail would the acquittal be to a person who has already served out his term of imprisonment or at any rate a major part of it?

Remember that Js. Bhagwati was dealing with the bail plea of a person convicted of murder and sentenced to life imprisonment by the High Court who had come in appeal to Supreme Court. Yet he was granted bail till the disposal of the appeal which could have taken a few years. Remember again that Tejpal’s case is under trial. Far from being convicted even the trial is getting inordinately delayed. His bail application should justifiably be allowed.

[Shobha Aggarwal is an advocate and Jt. Secretary, Public Interest Litigation Watch Group]

[1] The Nature of Judicial Process – Yale University Press (1921)
[2] (I Bovu. Law Dict., ‘Rawles’ III Revision p. 685- quoted in Judicial Discretion – National College of the State Judiciary, Reno, Nevada p.14).
[3] All citations in this article are from this Supreme Court’s judgement reported at 1978 AIR 527; 1978 SCR (2) 777; 1978 SCC (1) 579
[4] R.v. Rose 1898-18Cox CC. 717: 67 LJOB 289- quoted in ’The granting of Bail’, Mod. Law Rev. Vol. 81, Jan 1968 p. 40, 48
[5] (1899) 63 J. P. 193, Mod. Law Rev. p. 49
[6] 1977 AIR 2147