JAYANDRA SARASWATHY SWAMIGAL Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE Court made the following order: Arrest of the petitioner a saintly person, that too, on the day of Deepavali, would have definitely triggered the passion in the mind of millions of Indians. From then onwards, religious sentiments, faith and the reverence in which the petitioner is held, would be ruling in such minds. Emotional res-ponse would be running through their blood stream. Therefore there cannot be any doubt that emotional response and reaction alone would be instantly guiding them to evaluate a situation like this. The Judge, a human being, who presides over a court, is also vulnerable to such immediate emotional responses. But the Judge must come out of such a situation and deal with the issue before him in a dispassionate manner as otherwise, the decision making process may not be on the right path. The Honble Supreme Court of India in the judgment (Gurbaksh Singh Sibbia v. State of Punjab) had laid down what should be the airoach of the court in such circumstances and it is as hereunder: Judges have to decide cases as they come before them, mindful of the need to keep passions and preju-dices out of their decisions. Therefore keeping passions out of my mind and keeping myself at a safe distance from the impact of religious sentiments and faith which I have, I have decided to appreciate the issue in this application strictly on legal materials.

(2.) THERE is a long line of decisions starting from the one (Public Prosecutor v. Sanyasayya) as to what should be the approach of the court while considering the bail application. In the above referred to judgment, a Division Bench of this court held as follows The court is not called upon to conduct a preliminary trial of the case and consider the probability of the accuseds guilt or innocence. It would be entirely exceeding its function, if it did that in any detail. In (Niranjan Singh v. Prabhakar), while considering the bail petition the court held as follows Detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaus-tive exploration of the merits in the order itself. This principle is again reiterated by the Honble Supreme Court of India in the case (Puran v. Rambilas and Another) and it is as follows Giving reasons is different from discussing mertis or demerits. At the stage of granting bail a detailed examination of evidence and elabo-rate documentation of the merits of the case has not to be undertaken. This was quoted with approval again by the Honble Supreme Court of India in the judgment (Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another ). There was an earlier judgment of the Honble Supreme Court of India in the case Niranjan Singh v. Prabhakar (supra) wherein detailed examination of the evidence and elaborate documentation of the merits of the case while passing orders on bail application was deprecated. In Purans case referred to supra, the above referred to dictum of the Supreme Court was quoted with approval. The law on grant of bail has also been repeatedly laid down by the Honble Supreme Court of India. In Gurbaksh Singh Sibbia v. State of Punjab (supra) the Honble Supreme Court of India held as hereunder The question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. In that case the court went on to hold as follows The principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the excep-tion. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A per-sumably innocent person must have his freedom to enable him to establish his innocence. It referred to the judgment of the Calcutta High Court in the case reported in AIR 1924 Calcutta Pg. 476 (Nagendra v. Ning Emperor) where it was held that it is indisputable that bail is not to be withheld as a punishment. In 2004 (3) SCALE Pg. 257 referred to supra, it was held as follows It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail: they are (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima fade satisfaction of the court in support of the charge. In (State of Maharashtra v. Ramesh Taurani) the Honble Supreme Court of India held as follows It is trite that among other consi-derations which the court has to take into account in deciding whe-ther bail should be granted in a non-bailable offence is the nature and gravity of the offence. In that case the Supreme Court was considering the grant of bail at a stage when the investigation was continuing. These are the broad principles on which the request for bail has to be considered.

(3.) HEARD Shri Ram Jeth Malani learned senior counsel appearing for the petitioner and Shri K. T. S. Tulsi learned senior counsel appearing for the State. The learned senior counsel appearing for the petitioner would primarily put forward the following points as grounds for releasing the petitioner on bail forthwith: