MAGANLAL RAMSINGJIBHAI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The question indeed of quite some importance, day in and day out raised these days in Court that arises for our consideration in this Misc. Criminal Application is as to firstly, whether an accused person after he has been convicted and sentenced to jail for any serious offences can be ordinarily released on bail and for that purpose even the 'temporary bail' ?? If NO, secondly, what indeed ought to be the special considerations for granting such temporary bail to the convict prisoner sentenced to the rigorous imprisonment, more particularly to the one who is undergoing life imprisonment and that too in the serious case of bride-killing ?? And thirdly, more particularly in view of unabated, merciless spree of bride-killing, noticed these days, in order to have the positive, immediate-possible deterrent effect upon the accused/convict of such heinous crimes, whether the question of bail and temporary bail to him deserves to be discreetly kept out of the consideration with a view to enable Courts crusading their all-out efforts to apply break to the escalating problem evading solution, control to save, protect the society in particular women from the fall out of orgies of the male dominated world ? These questions arise in context of the following fact-situation.

(2.) It is the case of the petitioner Maganlal Ramsing Thakore that his son Jagdish is undergoing life imprisonment at Central Prison, Ahmedabad on being convicted by the judgment and order dated 29-4-1992 passed by the learned Additional City Sessions Judge, Ahmedabad, on the charge of having committed murder of his wife - Ushaben by pouring kerosene over her and that too after consuming the liquor. It is further the case of the petitioner that the accused is in jail since last about 4 years and during this period he was also released twice; on parole and on other occasion on furlough, and that thereafter not only he had surrendered in time but no untoward incident has taken place at his instance abusing the liberty. By making this application under S.389 of the Code, the petitioner has urged that his second son - Anil is to get married with Sumitra on 28th January, 1996 at Ahmedabad, and in that view of the matter, Jagdish his eldest son undergoing life imprisonment be released on temporary bail for atleast 15 days to enable him to celebrate and share the family enjoyment on the occasion of marriage.

(3.) Now, in view of the Division Bench judgment of this Court rendered in the case of State of Gujarat v. J. M. Patel, reported in 1995(2) GLH 260, since such applications for parole cannot be legally entertained, and accordingly entry for parole leave having been closed by way of the writ proceedings before the Court, the prisoners and their relatives quite ingeniously changing the label of parole, have conveniently turned round and shifted their remedies by making application for 'temporary bail' under S.389 of the Code. Under the circumstances, the question is as to whether any person sentenced to life, more particularly for life in a serious cases of dowry death, bride-burning, bride poisoning, bride throttling and/ or killing, rape, gang-rapes, etc., can be released even on 'temporary bail' in each and every case on mere asking on any grounds ?? Now, so far as the regular bail is concerned, there are indeed some quite well-considered guidelines as to under what circumstances in cases of non-bailable offences pending investigation and even trial, the accused can be released on bail. But so far as the aspect of temporary bail of the convict prisoner is concerned, there appears to be no such reported standardised guidelines on the basis of which the judicial discretion, to grant temporary bail could be reasonably exercised, of course some of the guidelines in the matter of releasing accused, pending investigation and thereafter pre-trial bail can as well be resorted to in deciding such applications. But strictly speaking, as regards the convictprisoner so far as the special guidelines as such for 'temporary bail' on some social, religious, medical grounds is concerned there seems to be no reported decision atleast on what considerations the judicial discretion should be exercised. And for this, one of the reasons for non-availability of reported decision on the point is that till quite recent past, suspension of sentence more particularly in cases of the life imprisonment was not distantly even dreamt of to be mechanically prayed for and even granted. However, looking to the changing trend and gradual increase of the spate of temporary bail applications, we feel that we shall have to also specially think over and settle the issue as far as practicable. Accordingly, now the question in focus before us is on the temporary release of the convict prisoner on bail, whether and when it can be granted, on what grounds ?? In order to properly appreciate and resolve this aspect, one is required to first of all bear in mind what indeed is the meaning and sanctity of the punishment awarded to the accused by the Court at the end of the trial. When the trial Court on the basis of the evidence, ultimately records an order of conviction against the accused and awards sentence of life, and for that purpose any other major punishment for any other offences that aspect one cannot afford to lose sight of so easily merely because the trial is over and is convicted. The reason is pending investigation and trial, the person is merely accused of an offence - but after the trial is over, his character substantially changes that from a mere accused to that of the confirmed convict. We are quite conscious of the fact that merely because a person is convicted and condemned to imprisonment and for that purpose even if the life imprisonment is imposed, his fundamental rights granted under the Constitution or any other human right for that purpose do not come to an end. We believe that he has still fundamental rights. We are also quite alive to the recent reformative trend and the resultant sympathetic attitude to the convict prisoners. But at the same time and nonetheless when the question involved is primarily a matter of pure and simple judicial discretion as to whether the person convicted of serious offences and sentenced to quite heavy punishment in view of peculiar facts and circumstances of the case, should he be released on temporary bail or not, then in that case merely because the temporary bail is refused, it cannot be said that the Court has denied and deprived the convict prisoner of his fundamental or reformative rights. In fact, the sentencing process has indeed a definite aim, object and accordingly, the specific meaning in it which every Court is required to zealously guard. In this regard to recall the same at this stage there are two quite well-known and defined principles of penology, viz., that in the first instance, by punishing a person, the Court, serves an object lesson to the concerned person convicted of the alleged offences that ultimately the life of crime does not pay and the inevitable consequences of the same is to lend oneself in jail and therefore, whenever a convict prisoner is released after the period of incarceration is over, he may not repeat the same or such similar offence in future. And in the second instance, it also sends signals to the like-minded other potential criminals in the society that committing such crimes, the consequence is the punishment of going to the jail and therefore, to keep away from giving vent to his criminal tendencies. Now, in order to properly and effectively project the aforesaid twin principles of penology in practice, to have the desired effect in maintaining and enhancing, in the first place, law and order and peace in the society and in the second place, the respect and dignity of law and Judiciary and thereby ultimately the 'Rule of Law', the concerned Court while considering the temporary bail application is unfailingly required to bear in mind over and above the aforesaid twin principles of penology third one, namely, once a person is convicted and sentenced, his release thereafter on temporary bail should be only on quite rare, exceptional, indispensable grounds . Accordingly, the overall sanctity of the punishment based upon the aforesaid twin principles of penology and ultimate jail discipline quite very much warrant that once the Court convicts a person and sentences him to imprisonment, he ordinarily cannot be lightly released on bail, much less on the temporary bail even, because such releases in turn unncessarily brings about repercussions and invites waives of reactions from the society and from the family members of the deceased, which in turn only demoralises the law enforcing agency and further undermines the overall respect for law in the society but it also in a way in a given case shakes the very faith of aggrieved people in the foundation of the Administration of Justice . In order to see that the 'law and order situation' and the 'rule of law' is properly maintained in the society, either a citizen should conduct himself ideally in a way which do not create any problem for law and order, that is to say, he should be law-abiding enough to give total respect to law or if he does not possess the said respect or love for law, then in the alternative, he must indeed atleast be afraid of the sanction of law. For the peaceful, happy, healthy, harmonious, prosperous congenial society either a person should have love and sense of duty towards his fellow citizen or the respect for law and if not that in the last resort fear of law to deter such trouble-shooters in the society disturbing the peace, order and security of the people. In fact, in a society wherein by and large a citizen do not care for the rights of his fellow citizen or corresponding social duties towards them or that there is no respect for the law or even fear of the law and everything and anything anytime could be done in a dare devil, light-hearted, unscrupluous politician's manner and when caught, convicted and sentenced at that time to exploit the mercy of the Court on crocodile tears of humanitarian aspect and get away on holiday from jail then it is quite difficult to imagine even how indeed a society can be regulated, disciplined, freed and protected from the fear and harassment of anti-socials to have peaceful and progressive rapport with the life ? And in absence of regulated, disciplined society, what peace, progress, speedy progress, welfar one could expect, to make human, civilised, peaceful living possible ? In fact, if the judicial head and heart is lightly ensnared and permitted to be kidnapped or whisked away on any myth, illusion and temptation of one-sided charity based upon misplaced sympathy, abandoning altogether the deserving sympathy for the victim, deceased and their family members also and particular for the society at large, i.e., undermining the principle of victimology and overall right and interest of the society to peaceful existence, we would be simply failing in our duty. It is under these compelling circumstances that we feel that the temporary bail application can never be a matter of mere asking and to be granted on any illusory gloss of sympathetic ground without closely scrutinising the overall justness of the same. We do not for a moment even say or suggest that an accused once convicted of serious offences and imprisoned has absolutely no right to temporary bail. No. Not the least. In fact, no such blind, absolute proposition putting blind fetters on judicial discretion can ever be imposed much less envisaged even. But at the same time, temporary bail being a matter of quite serious and extreme concern having ultimate bearing on the overall public interest and principles of penology, the same is required to be granted exercising sound judicial discretion, balancing all situations within the compass of extreme care, caution and circumspection. Under the circumstances, whenever a temporary bail application is made, the first question which the Court is required to address itself and answer is - (1) what indeed is the gravity and seriousness of offence ? That is to say, in the first instance, whether the convict prisoner was likely to abuse his liberty and thereby repeat the same or similar offences and in the second instance, whether he was likely to jump the bail. (2) whether if at all some 'special case' in other words 'indispensable ground' is made out for the temporary bail; then in that case in the first place, whether the ground on which temporary release on bail is sought for was indeed true, genuine, absolutely and indisputably indispensable, that is to say in case if the temporary bail is not granted, would it be inhuman and savage, hitting the prisoner below the belt, if he is not so released on the 'temporary bail' ?? and (3) whether in cases wherein any humanitarian ground is made out the ground is so weighty that if the temporary bail is not granted and something unfortunate happens, the Court would be placed unnecessarily in embarrassing position, accountable and guilty ?? It is only after testifying and certifying these aforesaid three tests, that the order of temporary bail may be passed or rejected. The first test is general, accordingly, favourable answer to the convict-prisoner on that count by itself not sufficient to entitle him to be released on bail unless and until he satisfies the Court on rest of the two counts.