قابل ضمانت جرائم میں عدالت کسی بھی صورت میں ضمانت قبل از گرفتاری یا بعد از گرفتاری خارج نہیں کر سکتی

2021 PCrLJ 1300

I. In case of bailable offence the accused has indefeasible right of bail.

II. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished.

III.In bailable offence the grant of bail is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace.

IV The Court is left with no option but to admit the accused to bail in a bailable offence.

Denial of statutory right to a litigant by the Courts is called injustice. When such refusal relates to liberty of a person having right of bail in bailable offences, it is called gross injustice that means to treat someone in an unfair way.

Plain reading of section 496 of the Code makes it clear that powers under this provision can be exercised by a Court only for a person other than a person accused of a non bailable offence. Whereas perusal of section 497 also leaves no ambiguity that these powers are to be exercised in case of non bailable offence. However, powers under section 498 are beyond any such restrictions of bailable or non bailable offence as it says that “the High Court or Court of Session may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail. Words “in any case” used in this provision makes no difficulty to understand that a person irrespective of the fact that he is the accused of a bailable or non bailable offence can be admitted to pre-arrest bail.

When read all sections (496, 497 and 498) together there remains no uncertainty that while deciding an application, may it be for bail after arrest or pre-arrest, in bailable offence the Court is left with no discretion to refuse the concession to an accused as in such eventuality the grant of bail is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace.

Under the Code of Criminal Procedure 1898 (Act V of 1898) {Code} for the purpose of bail the offences are divided into two categories termed as “Bailable offence” and “Non-bailable offence”. These are defined under section 4(b).

Above division of making the offences bailable or non bailable was not something new in the Code. In England until the 13th century, as the regional representative of the crown, the sheriff possessed sovereign authority to release or hold criminals. The Statute of Westminster in 1275 eliminated the discretion of sheriffs to declare that which crimes would be bailable because the bailable and non-bailable offences were specifically listed. The sheriff was left with the only authority of deciding the amount of bail.

In America, when the colonies became independent in 1776, they enacted specific bail laws. Section 9 of Virginia's Constitution in 1776 declared simply that "excessive bail ought not to be required”. This constitutional provision was supplemented in 1785 with a statute which eliminated judges’ discretion to grant bail by specifying that those shall be admitted to bail who are apprehended for any crime not punishable in life or limb. But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail. Thus, the Virginia laws closely paralleled the English system and statutes defined which offenses were bailable.

A Judge is to follow the laws of the land and principles settled by the superior Courts. The Courts have only to go behind the principle "Let justice be done though the heavens may fall”. Emotion is a fundamental aspect of human existence. In normal healthy people, feelings about options exert a powerful influence on choice. Intuition and anecdote suggest that people react more positively toward others whom they like or for whom they feel sympathy than toward others whom they dislike or for whom they feel disgust. Unlike Judges are expected to put their emotional reactions to litigants aside. United States Circuit Judge Jerome Frank asserted that “Mr. Prejudice and Miss. Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury. Judges are supposed to make reasoned decisions based on the facts and the law rather than on the basis of sympathy or empathy for litigants . Emotion, sympathy, empathy and kindness are aliens during the dispensation of justice. This principle signifies the belief that justice must be realized regardless of consequences.