Allahabad High Court
Girand Singh vs State Of U.P. on 25 January, 2010
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Rajesh Chandra
Court no. 42
Criminal Misc. Second Bail Application No. 96007 of 2009
AND
Criminal Misc. Parole/Short Term Bail Application No.340944 of 2009
IN
Criminal Appeal No. 3294 of 2005
Girind Singh versus State of U.P. and others
Hon'ble Rakesh Tiwari, J.
Hon'ble Rajesh Chandra,J.
Heard learned counsel for the applicant, Sri Karuna Nand Bajpai, learned A.G.A. and perused the record.
This second bail application has been moved on behalf of the accused appellant, as the prayer for bail having been earlier rejected on merits vide order dated 22.8.2007 by a Division Bench of this Court comprising of Hon. Mr. Justice Imtiyaz Murtaza and Hon. Mr. Justice Vijay Kumar Verma. Learned counsel for the accused appellant has once again tried to persuade us to reconsider the merits of the case and has tried to assail the veracity of the prosecution case as a whole. Arguments like the absence of motive and some contradictions in the statements of the witnesses and the medical evidence have also been pointed out. Once again the plea of false implication due to enmity has been emphasized by the counsel for the accused applicant.
A lot of emphasis has been given to the fact that the accused is in jail since 29.7.2005 and that though at the time when second bail application was moved only a period of three and a half years had passed but now more than 4 years have elapsed since his detention in jail. Some noteworthy cases relied upon by the counsel for the appellant accused are as under:
(I) (1978) 1 SCC-579, Babu Singh versus State of U.P.; (II) AIR 1977 SC-2147,Kashmira Singh versus State of Punjab; (III) JT 2001 (4) SC-40, Smt. Akhtari Bi versus State of M.P. It has been canvassed before us that the pendency period of the appeals in this High Court is unusually large and there is hardly any 2 possibility of the appeals being taken up in near future or in a measurable distance of time. In such a situation the accused must be released on bail after reconsidering the merits of the case. It has also been argued that in case the accused is acquitted in the last, there will be no justification for his incarceration during the period of the pendency of the appeal. The constitutional rights of accused to life and liberty have also been highlighted.
Apart from the second bail application a parole/short term bail application has also been moved on behalf of the accused appellant on the ground that back bone of his son has been fractured due to a fall who needs medical treatment. In order to make proper arrangements of money for his son's treatment, the release of the accused appellant has been sought.
Sri Karuna Nand Bajpai, learned Additional Government Advocate, has rebutted the arguments raised by the learned counsel for the appellant accused and submitted that it is not permissible under law to allow second bail application on any ground, which is not fresh or new. The grounds, which existed at the time of the rejection of the first bail application can not be treated to be fresh grounds at all. According to him, when the Court on a former occasion has already considered the bail matter on merits and has found no prima face case in favour of the accused. there is no question now to reconsider the point of bail on the same ground for that will simply amount to 'review or recall of the first order'. Criminal Procedure Code does not give any such power to the Criminal Courts.
According to him, second bail application can be entertained or allowed only in case the factual situation or the position of law changes in such a manner that it may invalidate the former order of rejection or may justify the grant of bail in the light of the change of factual or legal situation. He submits that a new ground on merits does not mean an argument raised by a new counsel or an argument by same counsel on a subsequent occasion, which could not be argued on earlier occasion. When the Court goes through the record and hears both the parties and passes a judgment on merit, it is deemed to have gone through all the relevant aspects of the case. Otherwise, there can not be any 3 discipline, check or end in moving fresh bail application every second day on the ground that one or the other point could not be argued. It is stated by him that the bail orders by their very nature are not supposed to be very lengthy and it is not always possible for the Courts to write in bail orders all what they have seen in the record and considered even though the counsel might have argued and referred to it. Therefore, a speaking reasoned order is the only requirement of law which has been done in the present case earlier. The Court on consideration found no case in favour of the appellant and rejected the prayer for bail on merits. The learned AGA has placed further reliance upon judgment of the Division Bench reported in 1999 CRI.L.J. 3709, Satya Pal versus State of U.P.In this case the following question was referred by a learned Single Judge to be decided by a larger Bench.
" Whether a fresh argument in a second bail application for an accused should be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected"?
This above question of law was referred to the Division Bench for the view taken in the case of Gama versus State of U.P., 1978 CRI.L.J. 242 was thus:-
" Even though it may be second or third bail application, but unless it is apparent from a reading of the first bail order that the point urged in the subsequent bail applications was also considered and rejected, it can not be said that the point urged in the second or third bail application would be deemed to have been considered in the first bail application just by implication."
On the reference, the Division Bench after hearing and considering all the relevant laws on this point, overruled the view taken by the learned Single Judge in Gama versus State of U.P. (supra) holding that-
" fresh arguments in the second bail application for an accused can not be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected."4
The learned AGA, then submitted that all the arguments advanced on behalf of the appellant regarding reconsideration of the merits of the case will be completely impermissible in the light of the above mentioned view of Division Bench in Satya Pal's case.
We find force in the argument of learned AGA and do not find any justification to rehear and reconsider the arguments on second bail application on same facts once again even when they have already been heard and rejected on the former occasion by this Court.
We also get fortified in our view by another case cited by the learned AGA, AIR 1989 Supreme Court-2292 State of Mahrashtra versus Captain Buddhilota Subha Rao. In this case the High Court of Maharashtra had allowed the second bail application after the first bail application had already been rejected. The Hon'ble Apex Court set aside the order of granting second bail and observed that-
" Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence."
Again it has been observed that-
" It will also result in consistency. In this view that we take we are fortified by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684 : (AIR 1987 SC 1613). For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation."
Learned counsel for the appellant has tried to distinguish Satya Pal's case (supra) on the ground that the same did not consider the scope of second bail application during the pendency of appeal after conviction. According to him, Satya Pal's case is an authority only in the matters relating to under trial. We see no force in this argument. It is true that in Satya Pal's case the question and scope of second bail was not specifically decided by the Court but this is because of the accepted practice of this Court which confines the Courts only to adjudicate and answer the questions of law, which have been directly 5 referred to them. Hypothetical questions are not entertained by the Courts which sit specifically to decide some referred question of law . But the reasoning and rationale given and adopted in Satya Pal's case will directly apply to the second bail applications of convicted accused also and there is no justification to adopt a different approach for convicted accused appellant. In fact, the scope of moving second bail application is much more for under trials as during the process of the trial one bail application may be rejected at one stage but after its rejection if some evidence is recorded, which is of such a nature that it demolishes the grounds on the basis of which the first bail application was rejected then the accused can have a right to be released on bail. This scope gets extremely constricted after the trial is over and the accused is convicted. There is no scope of change in the nature of evidence after conviction. But this constriction of scope to get the second bail on new grounds after conviction can not become a justification to reinvent merits in the arguments which had already been rejected on the former occasion as merit-less.
Now we come to the second limb of the argument advanced on behalf of the applicant,which emphasizes and attempts to justify the release on bail merely on the ground of increased period of detention. According to the learned AGA, the cases of Babu Singh and Kashmira Singh relied upon by the learned counsel for the appellant are clearly distinguishable for various reasons. According to him, the basic reasonings, which persuaded the Apex Court to recommend the grant of bail on the basis of period of detention was because the Apex Court used to reject the bail application as a matter of practice where the conviction had already been recorded. Such a practice was found to be unjustified in the light of the fact that it had become unlikely to decide the appeals within a measurable distance of time. According to the learned AGA, Special Leave Petitions are admitted in the Apex Court only when in the estimate of the Hon'ble Apex Court there is a fair possibility to allow appeal. Only in those cases where the accused succeeds to establish a prima facie case in his favour and is able to demonstrate a reasonable prospect of his acquittal in future after final hearing that the SLPs. are admitted. That is the reason why the Hon'ble 6 Apex Court deprecated the rejection of bail after conviction as a matter of routine or as a matter of practice even after admitting the SLP. Such a practice looked unjustified to the Apex Court only because it noticed the ironical paradox between two situations- one which admits the SLP after holding that the accused has a prima facie case in his favour and another which rejects his bail as a matter of practice due to paucity of time to hear the appeal finally.The learned AGA has drawn our attention to certain portions of both the judgments.
In Kashmira Singh's case the Hon'ble Apex Court observed as follows:-
" (2) The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. 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. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of 7 justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."
In Babu Singh's case, the Hon'ble Apex Court has placed its reliance again on Kashmira Singh's case and quoted in paragraph 24 of its judgment the entire observations given in Kashmira's Singh case, which have been quoted above. In paragraph 24 of Babu Singh's case it has been observed that-
"Yet another factor which heavily tips the scales of justice in favour of release pendente lite is the thought best expressed by Justice Bhagwati speaking for the Court in Kashmira Singh versus The State of Punjab".
Then the above quoted paragraph of Kashmira Singh's case has been quoted as follows:-
"The appellant contends......................against his conviction and sentence."
According to the learned AGA, this is not at all the practice of this High Court to reject the bail application after conviction as a matter of routine. He also emphasized that the appeals in the High Court are admitted as a matter of right and not because the accused has demonstrated a good prima facie case in his favour or after finding a reasonable prospect of his acquittal. In fact the considerations to admit appeal after conviction in the High Court are entirely different from the considerations of admitting SLPs. in the Supreme Court. In the High Court the matter of bail in appeal is adjudicated after going through the 8 entire merits of the case and bails are allowed or rejected not out of any practice but on the basis of merits of the case. If the accused appellant succeeds to establish a prima facie case in his favour or to show serious infirmity in the judgment of conviction passed against him or if he succeeds to demonstrate a fair likelihood of his acquittal after hearing he is always granted bail. The bail of the accused is rejected only when he fails to point out any serious infirmity in the prosecution case or in the judgment of conviction and fails to establish any prima facie case in his favour or if otherwise there are other special reasons to reject his bail.
We agree with the above submissions made on behalf of the State. It shall be really an irony and paradox to reject the bail of the accused even after finding a good prima facie case in favour of the accused and compel him to languish in jail because of inability to hear the case finally. But here the situation is entirely different. The first bail application of the accused had been rejected because the Court did not see any prima facie good case in favour of the accused. In other words, we can see that this Court prima facie has not seen any good prospect of a future acquittal of the accused on the basis of the merits of the case. We have once again looked into the facts of the case and perused the entire record. The accused is the main assailant who has used firearm and has hit the deceased on the vital part as a result of which the deceased succumbed to death. The medical report completely corroborates the prosecution case and the injured witness fortifies the allegations against the accused thoroughly. Prima facie, there is hardly anything to indicate anything wrong in the judgment of conviction and we see no reason to allow the second bail application on merits at all.
We have also taken note of fact that in Babu's Singh case all the accused persons were acquitted by the Sessions Court but subsequently the findings of the acquittal were reversed by the High Court and they were given life imprisonment. It was against that reversal of acquittal into conviction that the accused of that case had approached the Hon'ble Apex Court. This fact was given due importance by the Apex Court and while judging the desirability of 9 granting bail the Hon'ble Apex Court observed in paragraph 20 as follows:-
" 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."
The above observation was also found germane to decide the question of bail obviously because the judicial declaration of innocence by one Court has an important bearing to weigh the nature of accusation, the nature of evidence in support of the accusation and the severity of the punishment which conviction will entail. In the present case, the trial Court has not only found the accused guilty of murder but even on a prima facie reappraisal of the evidence by the High Court at the time of hearing on the point of bail found nothing incorrect in the findings of the lower Court.
We think it proper to clarify that though as has been discussed earlier, ordinarily there is very little chance to allow the subsequent bail application after conviction and after the first bail application has been rejected but there may be exceptional cases where some such material may be furnished or some such further developments may take place in view of which the continuation of detention of the accused may revolt against the judicial conscience of the Court. 'More material, further developments and different considerations' as referred in Babu Singh's case, which on a later occasion might persuade the Court to reconsider the point of bail must be, in our opinion, not trivial cosmetic changes nor they can be trifling considerations, they must be facts or situations or developments of grave magnitude and must be pregnant with crucial and conclusive implications. Only in such situation alone where the subsequent disclosure of facts may render the rejection of the first bail application wholly unjustifiable or repugnant to judicial concurrence or in conflict with some directions of the Apex Court, that the Court may entertain and allow the second bail.
Learned counsel for the accused appellant has placed his reliance on Smt. Akhtari Bi's case (supra). First of all the period of 5 years in jail 10 is not complete in the present case. Secondly, even in Smt. Akhtari Bi's case, the Hon'ble Apex Court has observed that-
".......There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them."
In our considered view even this case will not entitle the appellant for bail. Even in Kashmira Singh's case the Hon'ble Apex Court has observed a note of caution and had not given in its wisdom an unqualified directions to release the accused on bail merely because of the delayed detention period. It has been observed in Kashmira Singh's case that-
"....... the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."
In our opinion, the complete absence of merit on evidence in this case is a cogent ground to act otherwise as contemplated in Kashmira's case and the gravity of offence, nature of accusation and almost flawless cogent evidence of prosecution in the special circumstances which disentitles the accused to bail.
It may be relevant to mention here another case of the Hon'ble Apex Court 2005 All JIC 812, Surinder Singh alias Shingara Singh versus State of Punjab .
In this case, the Hon'ble Apex Court had the occasion to discuss once again the above mentioned cases pronounced by itself and several others on the point of detention period of the accused and its relevance for granting the bail. The genesis of this case was in one judgment of High Court of Punjab and Haryana, 2000 (1) CLR-74, Dharampal versus State of Haryana, which had observed and directed to release the accused on bail on the ground of their detention period alone. It was observed in Dharm Pal's case as follows:-
" We therefore, direct that life convicts, who have undergone at least five years of imprisonment of which at least three years should be after conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought 11 to apply to those convicted by the Courts Martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors with at least two years imprisonment after conviction. We, however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law."
The Apex Court after considering the cases of Smt. Akhatri Bi and Kashmira singh and several others on this point observed as follows:-
" But, however, it is significant to note that all these decisions only lay down broad guidelines which the courts must bear in mind while dealing with an application for grant of bail to an appellant before the Court. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a strait jacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, has been laid down over the years by the courts in this country in large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters."
It further observed that-
" We agree with the submission urged before us that the directions contained in the aforesaid judgment of the High Court are only in the nature of guidelines and the High Court should not be understood to have laid down an invariable rule to be observed with mathematical precision."
It is manifestly clear from the above observations that the detention period alone can not become a straight jacket formula to entitle any accused to bail.
Learned AGA has further brought to our notice two Division Bench cases of this High Court i.e. Criminal Appeal No. 6555 of 2006, Anees versus State of U.P. decided on 18.10.2008 and Criminal Misc. Second Bail Application No. 49193 of 2008 in Criminal 12 Appeal No. 6794 of 2007, Jaivir Singh and others versus State of U.P. decided on 17th September, 2008. In Anees's case a similar argument was advanced on behalf of the accused that in view of staggering pendency of the appeals the appellant can not have his appeal heard in next 100 years and for this reason also he should be granted bail. The Division Bench after considering all the relevant case laws including the case of Siddarth Vasisth alias Manu Sharma versus State (NCT) JT 2008(6) SC-467 and Smt. Akhtari Bi's case observed as follows:-
" I have carefully gone through Siddharth Vashishta's case (supra) It is nowhere held by the Hon'ble Apex Court that merely on the basis of the period of detention in jail after conviction, all the accused be released on bail without looking to the merit of the case and nature of the offence. The afore-cited observations made by the Hon'ble Apex Court in Siddarth Vasistha's case (supra) should not be misunderstood to mean that after conviction, the appellant-accused in all cases be released on bail merely by saying that the appeal would not be heard and disposed of within a' measurable distance of time.' Had the Hon'ble Apex Court intended to lay down that after conviction, all the accused would be released on bail merely on the basis of the period of detention in jail, then it could very well say that after conviction, all the accused be released on bail without going into merit of the case and nature of the offence, as the hearing of the appeals would take long time."
Similarly in Jaivir Singh's case the Division Bench of this Court refused to grant bail to the accused merely on the long period of detention. In this case also, the authorities of the Hon'ble Apex Court above mentioned were considered by the Court. In paragraph 9 of the order dated 17th September, 2008 on the 2nd bail application in Jaivir Singh's case in Criminal Appeal No. 6794 of 2007 the Court observed that-
" 9. In the case of Vijay Kumar versus Narendra and others, (2002) (9) SCC-364 and Ramji Prasad versus Rattan Kumar Jaiswal, (2002) 9 SCC-366 it was observed by the Hon'ble Apex Court that-" in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have 13 been committed, the gravity of the offence, and desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder."
We agree with the view taken in both these cases.
Learned counsel for the appellant has then emphasized upon rights of the accused to life and liberty and alleges the violation of the same on the basis of the detention of the accused in jail awaiting the final disposal of his appeal. We are quite conscious of the rights of the accused but must state that the detention in jail after conviction is after the accused has been given full opportunity to defend himself and after a proper thorough procedure of trial. The wings of his liberty have been clamped not arbitrarily and unreasonably but only through a proper procedure established by law. If the accused and his counsel shall cooperate, there is no reason why his appeal may not be finally decided within a measurable period of time after we have ordered preparation of the paper book and directed to expedite the final hearing of the case.
There is yet another angle which needs to be reckoned with. If we accede to the arguments of the defence that the appeal is not likely to be heard in next several decades and therefore, the accused should be released on bail just to save the possibility of his incorrect detention in case he is ultimately acquitted after final hearing then we will also have to take into account the fact that if an accused whose guilt is proved by the reliable evidence and who has failed to show any infirmity in the prosecution case or in the judgment of conviction shall we not be releasing a proved offender on bail with no possibility or hardly any possibility to execute his sentence after the final pronouncement of his guilt after hearing?. We shall be virtually reducing the sentence of life imprisonment to a period of maximum 5 years,if lapse of 5 years period will automatically entitle any accused to bail. For the simple reason that even according to applicant's counsel the period of final pronouncement will come after such a drawn out period that there is little chance for any accused to survive till his doomsday arrives .Such an interpretation of Smt. Akhtari Bi's case does not commend to us and we do not think that the Hon'ble Apex Court in its 14 judgment contemplated any such interpretation. The Hon'ble Apex Court in Smt. Akhtari Bi's (supra) case as observed that-
" In the absence of prompt action under the Constitution to fill up the vacancies, it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular benches to deal with the criminal cases can be set up where such appeals be listed for final disposal."
We therefore, direct the office to prepare typed copy of the paper book and list the appeal immediately thereafter, for hearing.
In the light of what has been discussed above, the second bail application is rejected.
Now we come to this last submission for grant of bail on mercy advanced by the learned counsel for the appellant in Criminal Misc. Parole/Short Term Bail Application No. 340944 of 2009.
In this bail application, learned counsel for the applicant has not pressed any of the grounds on merits but has simply appealed to the sentiments of the Court for granting bail to the accused. In the words of the counsel ' it's a mercy prayer'.
The prayer for bail only on mercy is made in the backdrop that the eldest son of the appellant died during the period accused was in jail and a further calamity befalling the second son has also been brought to our notice by the counsel for the appellant. It has been canvassed before us that as the second son is suffering from paralysis due to fall in which he has fractured his vertebra. It is stated that there being none else in the family to arrange for money release of the accused on bail is essentially required to arrange for medical treatment for his son which may give life to him. It is stated that his son is suffering from paralysis and would not be able to move which according to the counsel is a ground for mercy to be exercised by the Court whereas the learned AGA vehemently submits that the applicant has been convicted for life, therefore, for how long can he be granted bail? And if he is granted bail would it not amount to clemency repugnant to justice according to law.
15Justice and Mercy are said to be devine virtues and should not be allowed to conflict . Justice is one of the four cardinal virtues apart from temperance, courage and wisdom. Fair justice implies that a criminal gets exact punishment he deserve i.e. 'no more no less.' Hence, fair justice is about the balancing of the gravity of crime with the punishment.
To provide a convict more than he deserves by reducing his conviction or sentence and depriving the followers of law to live under their constant threat of life and liberty is not fair justice. However, in exceptional and rare circumstances kindness can be shown by tempering justice with mercy to augment its cause. Therefore, rule of Salus Populi Est Suprema Lex Regard i.e. public welfare is the highest law viz-a-viz the question of grant of bail after conviction only on grounds of mercy needs to be addressed at its basic level. The basic principle of justice essentially is that it is not done only on ground of mercy, which reduces justice and equitable punishment to less than required but it is to be tempered with mercy otherwise it is abandoned in preference to mercy.
There is a great danger to justice in showing mercy in every case as it can actually undermine itself. The more one tends to pardon crimes or show mercy in justice, the more one also emboldens criminals. It is understood as an indication that probability of remaining free from incarceration which they be undergoing after due process of law for paying just and proper price for their crime in the society gets increased disproportionately. The freedom that they may enjoy on bail cannot be compensated by them in case they are no more in this world or even if they are again incarcerated for life their period of freedom enjoyed under bail orders cannot be taken away by law or by any one. This itself might reduce the theory of just and proper sentence for justice in the system as unfair to the society and the judiciary. Justice is required in a functioning society for trust amongst fellow man whereas according to A.C. Grayling " we all need mercy ourselves." Therefore, key to justice is knowing when to temper justice with mercy and when not to show it as excess of either may be dangerous to the system of dispensation of justice. Therefore, if a convicted criminal requests for 16 mercy, it implies that he is asking for a punishment less than what he in fact deserves.
In the instant case, no details have been given by the applicant when his son met with the accident. There is not a whisper of medical evidence like x-ray plate etc. the treatment which he is receiving etc. Merely a bald statement is averred in the application. This is not sufficient for the Court to consider the circumstances to come to know as to how such a person ( the son of the appellant in the instant case) is surviving for such a long period without treatment, food or care, which naturally gives rise to the question as to who is looking after him during all this period. Even if the Court may intend to shower mercy, there is no foundation at all in the application as to what financial and other arrangements could be made by the applicant on permanent basis till he remains incarcerated and how long arrangements made by him would last.
The appellant has also not stated from where he will arrange money and what treatment will be given by him to the injured son. According to the learned counsel for the appellant, the accused is a very poor person. Even assuming that he does arrange for some money for treatment of his son how long will it last and how many times the Court will grant parole to the appellant for the purpose of arranging money or visiting his son regularly. To get short term bails and thereafter permanent bail till hearing of the appeal on the previous good conduct defeats the sentence of conviction imposed by due process of law.
We have given anxious thought to this novel argument for grant of bail on the sole ground of mercy but are afraid that we can not grant bail to an accused only on the ground of mercy even without there being any cogent reason in law which may persuade us otherwise. It is true that justice is to be tempered with mercy but then each circumstance has to be revaluated.
For all the reasons stated above, we are of the considered opinion that bail can not be granted on such vague averments merely on the saying of the accused appellant. There has to be material before 17 the Court to arrive at a conclusion that the person applying for bail requires the order.
However, in the facts and circumstances of the case, it is provided that in case the applicant moves a bail application giving better details of medical treatment etc. and how he will arrange money for the treatment of his son, the Court may sympathetically consider his bail application before hearing the appeal.
Last but not the least the Bench desires to record its appreciation to the par excellent manner in which the learned AGA Sri K.N. Bajpai, has shed light upon the question of balance between mercy and justice in grant of bail. His untiring research, assistance and brilliant address to the Court as to the circumstances in which second bail may or may not be granted cannot go unrecognized by us.
For these reasons, the prayer for short term bail/parole only on the ground of mercy is also refused.
Dated 25.1.2010 CPP/-
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