Is there any question of discretion in the matters of granting bail in case of a bailable offence?
Discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper and passion.
Question: Is there any question of discretion in the matters of granting bail in case of a bailable offence? [U.P.C.J. 1986, UPHJS 2009, Raj J 1999, WBJS, 2000]
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Answer
Lord Camden said,
“Discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual 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”
Section 436 of CrPC deals with provisions for bail in bailable offences. This provision is mandatory in nature, and the police or the court has no discretion over it.
The reason is that where a person arrested is not accused of a non-bailable offence, no needless impediments should be placed in the way of his being admitted to bail. In such cases, the man is ordinarily to be at liberty, and it is only if he is unable to furnish such moderate security, if any, as is required of him as is suitable for the purpose of securing his appearance before a Court pending inquiry, that he should remain in detention. In this way, this section is imperative, and under its provisions, the Magistrate is bound to release the person on bail or recognizance.
In Vaman Narayan Ghiya v. State of Rajasthan, (2008) Supreme Court, the apex court has held that no jurisdiction lies to any court while granting bail under section 436 CrPC except asking for security.
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