Q. Whether to grant or refuse bail is a matter of Judicial Discretion?

Ans.: Unlike a bailable offence where bail is a matter of right under 5. 436 Cr.P.C., grant of bail in a non-bailable offence under S. 437 Cr.P.C. or under S. 439 Cr.P.C. is a matter of judicial discretion.

The Word ‘judicial discretion’ has been very well explained by eminent jurist Benjamin Cardozo. In the elegant words of Benjamin Cardozo “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 own 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 the social life. Wide enough in all conscience is the field of discretion that remains.”

Even so, it is useful to notice the tart terms of Lord Camden that “the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable…” (1 Bovu. Law Dict., Rawles’ III Revision p. 885 – quoted in Judicial Discretion – National College of the State Judiciary, Reno, Nevada p. 14).

In case of GUDIKANTI NARASIMHULU v. PUBLIC PROSECUTOR, HIGH COURT OF AP, reported in 1978, AIR (SC) 429, Justice Krishna Iyer has observed that, “Some jurists have regarded the term ‘judicial discretion’ as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.”

The similar observation made by Hon’ble Supreme Court in another case of JAI PRAKASH SINGH V. STATE OF BIHAR AND ANOTHER, reported in, 2012 Cri.LJ 2101 that. “The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law, duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence.”

Above all the things make it clear that discretion means sound discretion guided by law. It must be governed by rule, it must not be arbitrary, vague and fanciful, but legal and regular and in the case of granting bail the judicial discretion of Judge must be exercised not in opposition to, but in accordance with the established principle of law.

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