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. AIR1978 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.

(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)ofllicsaidsub 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 centre-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 noroom 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: