ASHOK MALHOTRA Vs. STATE

JUDGEMENT

(1.) WHAT should the court do when, to borrow the expression of Krishna lyer J, in Moti Ram v. State of M.P. AIR 1978 SC 1594, a seeker is priced out of his liberty in the justice Market? This is the question. However, the facts first.

(2.) THE petitioners apprehending arrest under sections 406 and 498A of the Indian Penal Code obtained an order for anticipatory bail but with a condition attached. Here is the relevent part of the order. "Accordingly, I direct that applicants No. 1 to 3 shall deposit in a Nationalised Bank a sum of Rs. 50,000.00 each, in the name of the trial court, within a week from today and on their doing so, I direct that in the event of arrest they be released on bail, in this case, on furnishing a personal bond in the sum of Rs. 10,000.00 with a surety of like amount, each, to the satisfaction of the IO/SHO, subject to the condition that they shall surrender the FDR before the IO as directed above and shall join investigation as and when required. Applicant No.4, in the event of arrest be released on bail on his furnishing a personal bond in the sum of Rs. 10.000.00 with a surety of like amount, to the satisfaction of the IO/SHO subject to the condition that he shall join investigation as and when required." The grievance of the petitioners is that the condition so attached is so unreasonable that it frustrates the very purpose of bail.

(3.) IT is not suggested, nor can it possibly be, that anticipatory bail must necessarily be granted without imposition of any condition. Such an approach would clearly do violence to the very terms of section 438 of the Code of Criminal Procedure for, its sub -section (2) confers on the court the power to include such conditions as it may think Fit in the light of the facts of the case, including, of course, the conditions which find mention in clauses (i) to (iv) of the said sub section. The controversy surely is not as to whether the court has such power or not. It surely has. The question is also not as to whether the court while imposing any of the conditions is fettered by sections 437 and 439. It surely and expressly is not. The point which is at the center -storm is as to whether the discretion, though wide, has been exercised properly. I am confining myself to this question, for generalisation on matters like the present one which rest solely on discretion would invite not only pitfalls but death -traps too. The more they are avoided, the better. However, one thing is certain and it is that discretion though wide has always to be exercised by courts judicially. There is thus no room for whim, caprice or fancy. Discretion envisages fairness and reasonableness. Chaos is not its goal. That is why Justice Cardozo ("The Nature of the Judicial Process" 141 (1921) has said that : "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 oven, ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in social life". Wide enough in all conscience is the Field of discretion that remains." In short thus, judging through the use of discretion cannot and must not be allowed to become arbitrary judging. Judge has a duty to exercise his discretion reasonably. He, in other words, must act as a reasonable judge would act in the circumstances of the case. Reasonableness, it must be remembered is essentially a process and not merely a result. It is aconscious intellectual struggle among several lawful possibilities. And, while dealing with Section 438 of the code. 1. See B. Cardozo, "The Nature of the Judicial Process" 141 (1921) 2. See Pollock : "Judicial Caution and Valour "45 Law Q. Rev. 293, 294 (1929) 3. See : Clark, "The limits of Judicial Objectivity". 12 Am. U.L. Rev.1, 10 (1963) "An over generous infusion of constraints and conditions which are not to be found in section 438 can make its provisions Constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned."