ASHOK Vs. STATE OF M P

JUDGEMENT

(1.) SHRI Hemant Kumar placed reliance on the judgment of the Supreme Court in the matter of Maqsoodan and Ors. v. State of U. P. (1983 Cr. L. J. 218) and a judgment of this Court in the matter of Raghunandan Singh v. State of M. P. (1995 MPLJ 321 ). Shri Hemant Kumar submitted that the deceased Jyotibai was in expectation of death when her dying declaration was recorded by the Executive Magistrate in the presence of Medical Officer who was medically treating her. In view of that, he submitted that the said statement would not be coming under the purview of the dying declaration, and therefore, it should not be used for the purpose of rejecting the prayer for bail made by the petitioner. Shri Hemant Kumar further placed reliance on the judgment of this Court in the matter of Raghunandan Singh v. State of M. P. (supra) by pointing out that this Court has held in the said matter that the law of bails, which constitutes an important branch of procedural law, is not static one; and in a welfare State, it cannot indeed be so. It has to dovetail two conflicting demands, namely on one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person, alleged to have committed the crime; and on the other, the fundamental canon of Criminal Jurisprudence, viz. the presumption of innocence of an accused till he is found guilty. There are indeed conflicting equities highlighting the law of bails, but the shield in no case should be allowed to be the sword. Jurisprudence of bail has shown new dimensions and can be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice. Where the opposition by the prosecution is only for the sake of opposition, without just, fair or reasonable ground, bail may be granted by the Court.

(2.) TRUE, he is entitled to get the benefit of the above stated observation. However, the further portion of that judgment cannot be ignored which speaks that the provisions of Section 439 of Cr. P. C. has given a wider discretion to the Court while dealing with the application made by the accused for bail. An appeal to a Judge's discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law. Therefore, the discretion has to be used properly informing oneself about the liberty as fundamental right of a citizen so also restraints put on him by the legal provision and the circumstances brought forth by the prosecution for putting restraints on fundamental right of liberty of accused will have to be given due weightage in the light of legal precedents. In this context, allegations made against such accused by the prosecution have to be considered. Keeping oneself in a dispassionate mood and being not swayed away by emotions, it is to be seen whether the offence is too harsh, damaging permanently the society at large.

(3.) NO Court likes the fetters on the fundamental rights of a citizen and no Court likes that fundamental right to be eclipsed by the expectation of a trial. At the time of weighing the demand for protection of fundamental right, the Court is bound to be equally circumspect on the material which has been collected by the prosecution against such accused. The protection is to be rendered to such an accused who is facing a trial on the material which has been collected against him by the investigating agency and has to be also watchful towards the possibility of such accused tampering with the evidence, availability for the fair course of the trial. The interest of the society at large should also be kept in mind while deciding the bail matter. The liberty of such an accused has to be curtailed to avoid the danger to the legal course and for securing freedom of the prosecution witness to go to the Court for the purpose of giving evidence in the trial. At the same time, the larger interest of the society and possibility of growing the evil in future has also to be kept properly in mind. One cannot afford himself to be swayed away by emotions by golden words of "liberty", ignoring the material collected during investigation. Equally the interest of the society has to be considered. A golden mean has to be found in between these two important factors, and therefore, the strength of the material which has been collected by the prosecution against such an accused has to be given due weight.