15 July 2019


Judgments

Supreme Court

Pankaj Jain Vs. Union of India (UOI) and Ors.

MANU/SC/0151/2018

23.02.2018

Criminal

Discretion to grant bail has to be exercised judiciously and in a humane manner and compassionately

Present appeal has been filed against the judgment and order of High Court dismissing the Writ Petition filed by the Appellant. The main issue which needs to be answered in the present appeal is as to whether it was obligatory for the Court to release the Appellant by accepting the bond under Section 88 of Code of Criminal Procedure, 1973 (CrPC) on the ground that, he was not arrested during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting the application filed by the Appellant praying for release by accepting the bond under Section 88 of CrPC.

Discretion given under Section 88 of CrPC to the Court does not confer any right on a person, who is present in the Court rather it is the power given to the Court to facilitate his appearance, which clearly indicates that use of word 'may' is discretionary and it is for the Court to exercise its discretion when situation so demands. The word used in Section 88 "any person" has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses.

The present is not a case where Accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 of CrPC had been initiated. In this view of the matter, he was not entitled to the benefit of Section 88. The word 'may' used in Section 88 confers discretion on the Court whether to accept a bond from an Accused from a person appearing in the Court or not. Both Special Judge, C.B.I. as well as the High Court has given cogent reasons for not exercising the power under Section 88 of CrPC. There is no infirmity in the view taken by the Special Judge, C.B.I. as well as the High Court in coming to the conclusion that Accused was not entitled to be released on acceptance of bond under Section 88 of CrPC.

In the facts of the case, the Court held that, the trial court as well as the High Court ought to have exercised the discretion in granting the bail to the Appellant. Present Court in above circumstances, granted the bail to the Appellant of that case. There cannot be any dispute to the proposition as laid down by this Court with regard to grant or refusal of the bail, which are well settled. The discretion to grant bail has to be exercised judiciously and in a humane manner and compassionately.

There are two reasons due to which Supreme Court denied to accept the request of the Appellant to consider the case of bail of the Appellant in present proceeding. Firstly, present Court on two earlier occasions had granted liberty to the Appellant to make an application for bail before the trial Court, the Appellant has not filed any application for bail before the trial Court and had insisted on releasing him on acceptance of bond under Section 88 of CrPC. Secondly, in the facts of this case, trial Court is to first consider the prayer of grant of bail of the Appellant. As and when the Appellant files a bail application, the same shall be considered forthwith by trial Court taking into consideration his claim of disability and other relevant grounds which are urged or may be urged by the Appellant before it. The appeal is disposed of.

Tags : Bail Grant Discretion

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