The Hindu : Tamil Nadu News : `Apply discretion while granting bail'

Online edition of India's National Newspaper
Wednesday, Sep 15, 2004

Tamil Nadu

Tamil Nadu

`Apply discretion while granting bail'

By Our Staff Reporter

CHENNAI, SEPT. 14. Flaying the casual manner in which the subordinate courts were granting bail to those accused of committing heinous offences, the Madras High Court today laid down certain guidelines for the courts to follow while granting or refusing bail.

Justice R. Banumathi, criticising the Nagapattinam district sessions judge for granting bail to two persons in a murder case despite them having bad antecedents, said: ``Granting bail to the accused when they are involved in heinous and grave offence of murder and such other offences without application of mind, and without properly using the judicial discretion, would be viewed very seriously.'' (The elder brother of the victim had moved the court for the cancellation of bail granted to the two accused.)

Referring to a remark of the sessions judge that the prosecution had not objected to granting bail to the accused, Ms. Justice Banumathi said the phrases such as ``no objection'' or ``concession shown by the prosecutor'' could not be by themselves the valid ground to enlarge the accused on bail. ``Such a concession made by the public prosecutor does not in any way take away the duty cast upon the court to apply its mind on the nature and gravity of the offences.''

She also directed the subordinate courts to not merely record ``the state has no objection to release the accused'' in offences of grave nature like murder, robbery and such other offences. Courts must apply their ``judicial mind'' while passing orders on such matters, she added.

Recalling that the Nagapattinam sessions judge had considered the submission that the prime accused was a diabetic and had high blood pressure, the judge said the subordinate judge had ``grossly erred in not calling for the report from prison authorities whether he actually had diabetes and suffered from blood pressure...Any nature of sickness by itself would not entitle the accused for release on bail. The court should verify the availability of treatment in prison and whether the accused cannot get proper treatment in judicial custody.'' Describing the two diseases as ``common complaints,'' she then said that for these ailments medicines could be easily prescribed and administered in jail itself.

Enlarging the accused involved in grave offences on bail, casually and on medical grounds, would frustrate the ``legislative purpose behind the non-bailable offence,'' Ms. Justice Banumathi said.

She also asked the subordinate courts to keep in mind six factors while considering bail pleas. They are: the nature of the charge; accusations; evidence in support of the accusation; the severity of the punishment to which the accused may be subjected; the danger of the accused abusing the concession of bail by way of absconding or tampering with the evidence; and whether the grant of bail would thwart the course of justice.

Ms. Justice Banumathi then cancelled the bail granted to the two murder accused, nearly four months after they were enlarged on bail by the Nagapattinam sessions judge, and directed them to surrender before the judicial magistrate in Tiruvarur. The Tiruvarur town police was directed to arrest and remand both the accused to judicial custody.

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