PETITIONER: <NAME> & <NAME>. Vs. RESPONDENT: HOME SECRETARY, STATE OF BIHAR, GOVT. OF BIHAR, PATNA DATE OF JUDGMENT12/02/1979 BENCH: <NAME>, P.N. BENCH: <NAME>, P.N. PATHAK, R.S. KOSHAL, A.D. CITATION: 1979 AIR 1360 1979 SCR (3) 169 1980 SCC (1) 81 CITATOR INFO : RF 1980 SC1789 (112) RF 1981 SC 746 (3) RF 1981 SC 939 (2) E 1981 SC1675 (1,2) R 1982 SC1167 (1,2) R 1983 SC 361 ((2)19) RF 1985 SC 231 (2) R 1986 SC 180 (39) RF 1986 SC1773 (12) F 1987 SC 149 (9) RF 1988 SC1531 (87) F 1989 SC1335 (71) RF 1992 SC1701 (1,21,28,29,31,32,35) ACT: Administration of Justice-Pre-trial detention-Right of under-trial prisoner to have a speedy trial- Art. 21 of Constitution of India. Pre-trial release-Concept of-Determinative factors in grant of bail and release of under-trial prisoner on personal bond without monetary obligation explained. HEADNOTE: In their petition for the issue of a writ of habeas corpus the petitioners stated that a large number of men and women including children were in jails for years awaiting trial in courts of law and that the offences, even if proved, would not warrant punishment for more than a few months. Although sufficient opportunity was given, the <ORG> did not appear before the Court. Directing the release of the undertrials on their executing a personal bond. ^ HELD : (Per <NAME> & <NAME>, JJ.) 1. A procedure which keeps large number of people behind bars without trial for long, cannot possibly be regarded as "reasonable, just or fair" so as to be in conformity with the requirement of Art. 21. It is necessary, therefore, that the law as enacted by the <ORG> and as administered by the courts must radically change its approach to pre-trial detention and ensure `reasonable, just and fair' procedure which has a creative connotation after the decision of <ORG> in <NAME> case. [174 C-D] 2. Speedy trial is of the essence of criminal justice and, therefore, delay in trial by itself constitutes denial of justice. Though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Art. 21. Speedy trial which means reasonably expeditious trial, is an integral part of the fundamental right to life and liberty enshrined in Art. 21 , [179 H, 180 C, F] Art. 21 confers fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Art. 21 and he would be entitled to enforce such fundamental right and secure his release. Any procedure prescribed by law for depriving a person of his liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. [180 D-E] 170 <CITATION> ,  2 SCR 621; referred to. 3. Expeditious trial and freedom from detention are part of human rights and basic freedoms. The judicial system which permits incarceration of men and women for long periods of time without trial is denying human rights to such undertrials and withholding basic freedoms from them. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. [173 C-E, F] 4. One reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is the highly unsatisfactory bail system, which suffers from a property oriented approach. It proceeds on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. Even after its re-enactment, the Code of Criminal Procedure continues to adopt the same antiquated approach. Where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay the amount of bail in case the accused fails to appear to answer the charge. [174 E-G] This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the Court is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. [174 G-175 D] The bail system, as it operates today, is thus a source of great hardship to the poor and if the civil effects of poverty are to be eliminated and a fair and just treatment assured to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pre-trial release without jeopardizing the interest of justice. [177 C-D] Risk of monetary loss is not the only deterrent against fleeing from justice. There are also other factors which act as equal deterrents against fleeing. Therefore, the courts, even under the law as it stands today, must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. If the court is satisfied, after taking into account, on the basis of 171 information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. [177 E, G, H] 5. To determine whether the accused has his roots in the community which would deter him from fleeing, the court should take into account the following factors concerning the accused: (1) The length of his residence in the community, (2) his employment status, history and his financial condition, (3) his family ties and relationships, (4) his reputation, character and monetary conditions, (5) his prior criminal record including any record of prior release on recognizance or on bail, (6) the identity of responsible members of the community who would vouch for his reliability, (7) the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and (8) any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear. [178 A-E] If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non- appearance, the accused may, as far as possible, be released on his personal bond. If facts are brought to the notice of the court showing that, having regard to the condition and back-ground of the accused, his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious, the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. [178 F-179 D] 6. Necessary to provide by an amendment of the penal law that if an accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action. [177 F] 7. High time that the <ORG> Government realised its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. [180 H] 172 Pathak J. (concurring) (1) The primary principle of criminal law is that imprisonment may follow a judgment of guilt, but should not precede it. There is also another principle which makes it desirable to ensure that the accused is present to receive his sentence in the event of being found guilty. [181 E] (2) It is indisputable that an unnecessarily prolonged detention in prison of undertrials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. [181 D] (3) The Code of Criminal Procedure both the old Code and the new include provisions for the release of a person on bail or on the execution of a bond without sureties for his appearance. There is an amplitude of judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance within the existing provisions of the Code of Criminal Procedure and it is for the <ORG> to fully acquaint themselves with the nature and extent of their discretion in exercising it. It is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or the monetary obligation demanded in a bond is a matter calling for the careful consideration of several factors. The entire object being only to ensure that the undertrial does not flee or hide himself from trial, all the relevant considerations which enter into the determination of that question must be taken into account. [181 E, 182 B-C] (4) The abuses attendant on the prevailing system of pre-trial release in India could be avoided or, in any event greatly reduced, if considerations like "nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record or appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings", are taken into consideration when determining pre-trial release and the amount of security or monetary obligation to be imposed. [182 G, E-F] United <ORG>s Bail Reforms Act, 1966: 18 USS 3146 (b), <CITATION> .  4 SCC 47; referred to. (5) Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.[183 B] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979. Mrs. <NAME> for the Petitioners <NAME> and <NAME> for the Respondent.

The Judgment of <NAME> and <NAME>, JJ. was delivered by <NAME>, <NAME>, J. gave a separate Opinion.

BHAGWATI, J.-This petition for a writ of habeas corpus discloses a shocking state of affairs in regard to administration of justice in the State of Bihar. An alarmingly large number of men and women, children including, are behind prison bars for years awaiting trial in courts of law. The offences with which some of them are charged are trivial, which, even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial. We are shouting from house tops about the protection and enforcement of human rights. We are taking passionately and eloquently about the maintenance and preservation of basic freedoms. But, are we not denying human rights to these nameless persons who are languishing in jails for years for offences which perhaps they might ultimately be found not to have committed ? Are we not withholding basic freedoms from these neglected and helpless human beings who have been condemned to a life of imprisonment and degradation for years on end? Are expeditious trial and freedom from detention not part of human rights and basic freedoms ? Many of these unfortunate men and women must not even be remembering when they entered the jail and for what offence. They have over the years ceased to be human beings they are mere ticket-numbers. It is high time that the public conscience is awakened and the Government as well as the judiciary begin to realise that in the dark cells of our prisons there are large numbers of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice-a commodity which is tragically beyond their reach and grasp. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. The time has come when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigures the fair and otherwise luminous face of our nascent democracy.

Though we issued notice to the State of Bihar two weeks ago, it is unfortunate that on the 5th February, 1979 no one has appeared on behalf of the State and we must, therefore, at this stage proceed on the basis that the allegations contained in the issues of <ORG> dated 8th and 9th January, 1979 which are incorporated in the writ petition are correct. The information contained in these newspaper cuttings is most distressing and it is sufficient to stir the consci-

ence and disturb the equanimity of any socially motivated lawyer or judge. Some of the undertrial prisoners whose names are given in the newspaper cuttings have been in jail for as many as 5, 7 or 9 years and a few of them, even more than 10 years, without their trial having begun. What faith can these lost souls have in the judicial system which denies them a bare trial for so many years and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them. It is a travesty of justice that many poor accused, "little Indians, are forced into long cellular servitude for little offences" because the bail procedure is beyond their meagre means and trials don't commence and even if they do, they never conclude. There can be little doubt, after the dynamic interpretation placed by this <ORG> on Art. 21 in <CITATION> (1) that a procedure which keeps such large numbers of people behind bars without trial so long cannot possibly be regarded as 'reasonable, just or fair' so as to be in conformity with the requirement of that Article. It is necessary, therefore, that the law as enacted by the <ORG> and as administered by the courts must radically change its approach to pretrial detention and ensure 'reasonable, just and fair' procedure which has creative connotation after <NAME> case supra.

Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is hero that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. <ORG> appointed by <ORG> under the chairmanship of one of us, Mr. Justice <NAME>, emphasised this glaring inequality in the following words:

"The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened <ORG> in the United States such as <ORG> and <ORG> shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount."

<ORG> also pointed out how the practice of fixing the amount of bail with reference to the nature of the charge without taking into account relevant factors, such as the individual financial circumstances of the accused and the probability of his fleeing before trial, is harsh and oppressive and discriminates against the poor:

"The discriminatory nature of the bail system becomes all the more acute by reason of the mechanical way in which it is custormarily operated. It is no doubt true that theoretically the Magistrate has broad discretion in fixing the amount of bail but in practice it seems that the amount of bail depends almost always on the seriousness of the offence. It is fixed according to a schedule related to the nature of the charge. Little weight is given either to the probability that the accused will attempt to flee before his trial or to his individual financial circumstances, the very factors which seem most relevant if the purpose of bail is to assure the appearance of the accused at the trial. The result of ignoring these factors and fixing the amount of bail mechanically having regard only to the seriousness of the offence is to discriminate against the poor who are not in the same position as the rich as regards capacity to furnish bail. The Courts by ignoring the differential capacity of the rich and the poor to furnish bail and treating them equally produce inequality between the rich and the poor: the rich who is charged with the same offence in the same circumstances is able to secure his release while the poor is unable to do so on account of his poverty. These are some of the major defects in the bail system as it is operated to-day."

The same anguish was expressed by President <NAME> at the time of signing the Bail Reforms Act, 1966:

"Today, we join to recognize a major development in our system of criminal justice: the reform of the bail system.

This system has endured-archaic, unjust and virtually unexamined-since the Judiciary Act of 1789. The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.

How is that purpose met under the present system ? The defendant with means can afford to pay bail. He can afford to buy his freedom. But poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed.

He does not stay in jail because he is any more likely to flee before trial.

He stays in jail for one reason only-because he is poor....."

The bail system, as it operates today, is a source of great hardship to the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.

It is high time that our <ORG> realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing. Ours is a socialist republic with social justice as the signature tune of our constitution and <ORG> would do well to consider whether it would not be more consonant with the ethos of our constitution that instead of risk of financial loss, other relevant considerations such as family ties, roots in the community, job security, membership of stable organisations etc., should be the determinative factors in grant of bail and the accused should be in appropriate cases be released on his personal bond without monetary obligation. Of course, it may be necessary in such a case to provide by an amendment of the penal law that if the accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action. But even under the law as it stands today the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good. The new insight into the subject of pretrial release which has been developed in socially advanced countries and particularly the United States should now inform the decisions of our <ORG> in regard to pretrial release. If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community.

2. his employment status, history and his financial condition,

3. his family ties and relationships,

4. his reputation, character and monetary condition,

5. his prior criminal record including any record or prior release on recognizance or on bail,

6. the identity of responsible members of the community who would vouch for his reliability.

7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and

8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.

If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what we have said here in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. We have no doubt that if the system of bail, even under the existing law, is administered in the manner we have indicated in this judgment, it would go a long way towards relieving hardship of the poor and help them to secure pretrial release from incarceration. It is for this reason we have directed the undertrial prisoners whose names are given in the two issues of <ORG> should be released forthwith on their personal bond. We should have ordinarily said that personal bond to be executed by them should be with monetary obligation, but we directed as an exceptional measure that there need be no monetary obligation in the personal bond because we found that all these persons have been in-jail without trial for several years, and in some cases for offences for which the punishment would in all probability be less than the period of their detention and moreover, the order we were making was merely an interim order. The peculiar facts and circumstances of the case dictated such an unusual course.

There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is a bad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough; how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." So also Article 3 of the European Convention on Human Rights provides that:

"every one arrested or detained-shall be entitled to trial within a reasonable time or to release pending trial."

We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in <CITATION> . We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article

21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on <ORG> that it is high time that <ORG> realised its responsibility to the people in the matter of admini-

stration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to establish more courts but <ORG> would also have to man them by competent judges and whatever is necessary for the purpose of recruiting competent judges, such as improving their conditions of service, would have to be done by <ORG>, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is to-day a meaningless and empty word.

These are the reasons for which we made our order dated 5th February, 1979. We shall now proceed to hear the writ petition on 19th February, 1979.

PATHAK, J.-It is indisputable that an unnecessarily prolonged detention in prison of undertrials before being brought to trial is an affront to all civilized norms of human liberty. Any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. The primary principle of criminal law is that imprisonment may follow a judgment of guilt. But should not precede it. But there is another principle which makes it desirable to ensure that the accused is present to receive his sentence in the event of being found guilty. Now, the Code of Criminal Procedure, both the old Code and the new, include provision for the release of a person on bail or on the execution of a bond without sureties for his appearance. Nonetheless, as appears prima facie from the record before us, a large number of persons whose names, find mention in copies of <ORG> of January 8 and 9, 1979, have been in prison for long year without even being brought to trial. Although sufficient opportunity was given to the State of Bihar to meet the allegations made, it is unfortunate that no one has appeared on behalf of the State. In view of the importance of the questions arising on the habeas corpus petition, we have provided further opportunity to the State to appear and accordingly have posted the petition for final hearing on February 19, 1979. But at the same time we see no reason why interim relief should be denied to these undertrials. After carefully considering what has been said in respect of each individual undertrial, we have considered it appropriate, in the interests of justice, to make the order of February 5, 1979 directing the release of the persons mentioned in that order on their executing a personal bond. The order is somewhat unusual in that it directs that the personal bond to be taken in each case should not be based on any monetary obligation. The condition has been included as an exceptional measure, under the persuasive pressure of the particular facts and circumstance of the case.

In regard to the exercise of the judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance, I have to say this briefly. There is an amplitude of power in this regard within the existing provisions of the Code of Criminal Procedure, and it is for the <ORG> to fully acquaint themselves with the nature and extent of their discretion in exercising it. I think it is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or the monetary obligation demanded in a bond is a matter calling for the careful consideration of several factors. The entire object being only to ensure that the undertrial does not flee or hide himself from trial, all the relevant considerations which enter into the determination of that question must be taken into account. A synoptic impression of what the considerations could be may be drawn from the following provision in the United States Bail Reform Act of 1966:

"In determining which conditions of releases will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

These are considerations which should be kept in mind when determining the amount of the security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing system of pretrial release in India could be avoided or, in any event, greatly reduced <CITATION> .

I consider it desirable to refrain from making any final comment or observation on the legality and propriety of the continued detention of the undertrial prisoners whether on the ground of infringement of Article 21 of the Constitution or on other grounds. That, I think, should await the final determination of the habeas corpus petition.

These are the reasons which have influenced me in making the order dated February 5, 1979.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an undertrial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of undertrial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step in defence of individual liberty if appropriate provision was made in the statute for non-financial releases. N.V.K.


PETITIONER: COMMISSIONER OF POLICE, BOMBAY Vs. RESPONDENT: GORDHANDAS BHANJI. DATE OF JUDGMENT: 23/11/1951 BENCH: <NAME>, VIVIAN BENCH: <NAME>, VIVIAN FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND CITATION: 1952 AIR 16 1952 SCR 135 CITATOR INFO : D 1954 SC 592 (16) F 1955 SC 661 (7) APL 1958 SC 419 (34) D 1965 SC1740 (18) R 1970 SC1896 (15) RF 1975 SC 550 (9) R 1978 SC 851 (8) D 1982 SC 149 (44) R 1982 SC 691 (11) D 1982 SC1407 (12) ACT: City of Bombay Police Act (1 of 1902), s. 22(1)--Rules under the Act, rr. 8, 238 to 257, 263 to 283-- Specific Relief Act (I of 1877), s. 45- -Licence for construction of cinema--Duties of Commissioner of Police--Permission granted by Commissioner--Cancellation of licence by Government--Validity of cancellation--Discretion of Commis- sioner--Duty to exercise discretion--Application for mandamus to order Commissioner to grant permission--Main- tainability--Proper relief--Public orders--Construction--Reference to explanations given subse- quently--Propriety of. HEADNOTE: An application by the respondent for permission to build a cinema on a site within the City of Bombay was rejected by <NAME>, Bombay. The respondent applied for reconsideration of his application and the Commissioner, acting on the advice of <ORG>, granted the application on the 16th July, 1947, though he indicated in an affidavit flied later that but for this advice he would have refused the application again. Subse- quently, under instructions from Government the Commissioner sent the following communication to the respondent: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under the office letter dated 16th July, 1947, is hereby canceled." The respondent applied to <ORG> for an order under s. 45 of the Specific Relief Act directing <NAME>, Bombay, to withdraw the cancellation and to grant permission for the erection of the cinema, and <ORG> directed <NAME> "to withdraw the order of cancellation passed by him." The Commissioner of Police appealed to <ORG>. Held, (i) that there was nothing in the letter dated 16th July, 1947, to indicate that the decision was not that of the Commissioner himself given in the bona fide exercise of the discretion vested in him. The sanction was not conse- quently invalid merely because the Commissioner decided to accept the advice of <ORG> even though without that advice he would not have granted the permission. (ii) There was no valid cancellation of the license because (a), the order of cancellation communicated to the respondent 'was one made by the Government of Bombay and not by the Commissioner on his own authority;he acted in the matter only as a transmitting agent; (b), under the rules framed under 136 section 22 (1) (f), (1) (g) and (n) of the City of Bombay Police Act 1902 the Government of Bombay had no power to cancel of license once issued. The only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is <NAME>. (iii) The relief sought by the respondent of an injunction to direct <NAME> to grant permission for the erection of a cinema could not be granted because he had already granted permission and there was no valid order of cancellation. (iv) The other relief asking for an injunction directing the commissioner to withdraw the cancellation also could not be granted because Rule 250 vests the Commissioner with an absolute discretion in the matter. (v) Though there was no specific provision of law compel ling the Commissioner to exercise the discretion vested in him under Rule 250, inasmuch as the enabling power vested by Rule 250 was vested in the Commissioner for the welfare of the public at large it was coupled with a duty to exercise it when the circumstances so demanded. The Commissioner could consequently be ordered under s. 45 of the Specific Relief Act to exercise his discretion and decide whether the licence should or should not be cancelled. (vi) The words "any law" in s. 45 do not mean statutory law alone but embrace all kinds of law whether referable to a statutory provision or otherwise. Therefore the perform- ance of duties under the rules can be compelled under the provi- sions of s. 45 . (vii) There was no other specific and adequate legal remedy open to the respondent within the meaning of s. 45 for though the respondent could have ignored the so-called order of cancellation , he could only have done so. at his peril as it purported to emanate from <ORG> and was served by a public officer. The remedy of injunction was not a proper and adequate remedy in the circumstances of the present case. (viii) The petition was not incompetent under s. 46 of the Specific Relief Act as there had been a demand of justice and a denial thereof within the meaning of the section in the circumstances of the case. (ix) Public orders, publicly made, in exercise of a statu- tory authority cannot be construed in the light of explana- tions subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intend- ed to do. As such orders are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed' they must be construed objec- tively with reference to the language used in the order itself. 137 Julius v. Lord Bishop of Oxford (5 App. Cas, 214), <CITATION> (50 I .A. 227) referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 93 of 1951. Appeal from the Judgment and Decree of <ORG> (<ORG> and <NAME> dated 6th Septem- ber, 1949, in Appeal No. 16 of 1949, arising out of the Judgment dated' 2nd February, 1949, of a Single Judge of the same <ORG> (<NAME> .) in Miscellaneous Application No. 223 of 1948. The facts of the case and arguments of counsel are stated fully in the judgment. <NAME>, Solicitor-General for Indict (<NAME>, with him)for the appellant.

<NAME> (<NAME>, with him) for the respondent.

1951. November 23. The Judgment of the Court was delivered by BOSE J.--The question here is whether an order should issue under section 45 of the Specific Relief Act against the appellant, who is the Commissioner of <ORG>, Bombay. The respondent, <NAME>, wanted to build a cinema house on a plot of land at Andheri in the year 1945. At that date Andheri did not form a part of Bombay and under the. rules then in force it was necessary to obtain permis- sion from the District Magistrate of that area in the form of a No Objection Certificate. Accordingly, the respondent made the necessary application on the 12th of September, 1945. Permission.was refused on the 30th of September, 1945, on the ground that the public of the locality objected and also because there was already one cinema theatre at Andheri and so it was not necessary to have another "for the present."

On the 1st of October, 1945, Andheri became a part of Greater Bombay and the jurisdiction to grant or refuse a license was transferred to the Commissioner of Police, Bombay. The respondent accordingly put in a second applica- tion on the 21st of November, 1945, and addressed it to the Commissioner of Police. After some correspondence this was also turned down on the 19th of March, 1946, "owing to public opposition." Nothing daunted, the respondent applied again on the 1st of April, 1946, and asked for a "reopening" of his case. One of the grounds given was that "The Government of Bombay are giving very careful atten- tion and affording all reasonable facilities to develop the Greater Bombay into a model one. A modern cinema, there- fore, of the type I propose to build is indispensable."

In view of that, not unnaturally, the Commissioner of Police appears to have consulted <ORG>, for he wrote to the respondent on the 25th of April, 1946, saying that "the whole question of considering and approving sites for cinemas is under the consideration of <ORG>,"

and he promised that "when a decision is arrived at, your application will be examined."

It seems that somewhere about this time <ORG> was constituted by <ORG>. We have not been enlightened about the scope and extent of its powers but it is evident from its nomenclature that its functions were purely advisory. Five members of this Committee appear to have inspected the site on the 12th of May, 1947, and after prolonged discussion they reached the conclusion that "in view of the location of four schools near by the site, this site is unsuitable for the purpose required and therefore it should be rejected."

A note was drawn up to that effect and the matter was ordered to be placed on the agenda of the next meeting of the <ORG> "for final decision."

This final decision has not been placed on record but the Commissioner of Police tells us in his affidavit that within a month the <ORG> advised that the application should be granted. Accordingly, the Commissioner accorded the necessary permission by his letter dated the 14/16th of July, 1947. There is no refer- ence here to the recommendations of the Advisory co Commit- tee and. though they may have weighed, and rightly, with the Commissioner there is nothing on the face of the letter to indicate that the decision was not that of the Commis- sioner himself given in bona fide exercise of the discretion vested in him.

We refer to this because the Commissioner has stated in his affidavit that I was fully satisfied that the petitioner's application should be refused, but that it was only at the instance of <ORG> that I granted the said per- mission on the 14th of July, 1947."

That, however, would not affect the validity of his order. There is no suggestion that his will was overborne or that there was dishonesty or fraud in what he did. In the absence of that, he was entitled to take into consideration the advice thus tendered to him by a public body set up for this express purpose, and he was entitled in the bona fide exercise of his discretion to accept that advice and act upon it even though he would have acted differently if this important factor had not been present to his mind when he reached a decision. The sanction accorded on the 16th of July, 1947, was therefore a good and valid sanction. This sanction occasioned representations to <ORG> presumably by the "public" who were opposing the scheme. Anyway, the Commissioner wrote to the respondent on the 19/20th September, 1947, and direct him "not to proceed with the construction of the cinema pending <ORG> orders."

Shortly after, on the 27/30th September, 1947, the Commissioner sent the respondent the following communica- tion:

"I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under this office letter...dated the 16th July, 1947, is hereby cancelled."

It will be necessary at this stage to determine whether this was a cancellation by the Commissioner of on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other au- thority. We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commission- er but merely intimation by him of an order passed and made by another authority, namely the Government of Bombay.

An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancella- tion made by him and that the order was his.order and not that of Government. We are clear that public orders, public- ly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to hum they are addressed and must be construed objectively with reference to the language used in the order itself. Turning now to the language used, we are clear that by no stretch of imagination can this be construed to be an order which in effect says :--

"I, so and so, by virtue of the authority vested in me, do hereby order and direct this and that." If the Commissioner of Police had the power to cancel the license already grant- ed and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.

But if there is ambiguity or doubt in the language used here a glance at the surrounding circumstances will dispel it. What was the position at the time ? Permission was first refused and then granted, then suspended and the respondent was told to await, not the Commissioner's orders, but those of <ORG>. Then comes the letter in question which conveys those orders. So also there is the conduct of the Commissioner not long after. The respondent's solicitors placed the same construction on the order of the 30th Sep- tember as we do and asked the Commissioner how <ORG> could interfere with a permission granted by him. They said on the 18th November 1947 :-

"Our client has been advised that the authority to grant permission is in you acting in consultation with <ORG>. It is difficult to understand how the Government can interfere with the permission granted by you."

The Commissioner's reply dated 3/4th December, 1947, was:--

"I write to inform you that permission granted to your client was cancelled under the orders of the Government who may be approached..."

We are clear that this roundabout language would not have been used if the order of cancellation had been that of the Commissioner. We do not mean to suggest that it would have been improper for him to take into consideration the views and wishes of <ORG> provided he did not surrender his own judgment and provided he made the order, but we hold on the material before us that the order of cancellation came from <ORG> and that the Commissioner acted only as a transmitting agent.

It is next necessary to determine whether <ORG> had the power to cancel a license once issued. That depends on a consideration of the Rules. They are framed under section 22 (1) (f) (i) (g) and (h) of the City of Bombay Police Act, 1902. They regulate the "licensing, controlling, keeping and regulation" of places. of public amusement in  the City of.Bombay. Rule 8 applies to any person desirous of "erecting"a cinema, building.

There is, in our opinion, a distinction of principles between the erection and use of buildings for purely private and residential purposes and those intended to be used as places of public amusement. Considerations arise regarding the latter which would not be applicable to the former, among them the right to withdraw or modify a license once issued. Ordinarily, a man can do what he likes with his property subject of course to specific laws regulating his use of it, there- fore in the case of a private residence he would in a general way have a right to build if he complies with all the rules and regulations and restrictions which may be imposed by law, and if permission is withheld when all the conditions are fulfilled he would normally have a right to demand that the necessary permission be given. But that sort of consideration does not apply to a place intend- ed to be used for public performances. There, questions affecting the safety, convenience, morality and welfare of the public must be given overriding precedence and it is.usual in these cases, on grounds of public concern, to vest some public authority with a discretion to grant or refuse such licences and to modify or cancel ones already granted. It is necessary to bear this distinction in mind when construing the present rules. 'Therefore, when Rule 8 speaks of "erecting" such premises, it must be borne in mind that the rule is not a mere building rule affecting the erection of a building in the abstract but applies to a building intended to be used for a particular purpose and the license applied for is not merely for permission to build but also to use structure, when erected, for a partic- ular purpose affecting the public at large and the residents of the locality in particular.

Rule 8 falls under Part II which is headed :- "Preliminaries to obtaining license for premises." These preliminaries include-

(a) the making of an application in writing to the Commis- sioner of Police, and

(b)the giving of a certain notice as a preliminary to the application.

This notice has to be in the form prescribed in Schedule A and has to be maintained on a certain board "until the application has been dealt with by the Com- missioner" and the rule prescribes that-

" no application shall be considered before the expira- tion of one fortnight after the receipt by the Commissioner of a copy of the notice etc."

Schedule A shows 'that the object of the notice is to enable the Commissioner to receive objections to the pro- posed erection.

The rest of the rules in Part II specify the matters which the application shall contain and the documents which must accompany it including plans and specifications of the proposed building.

Part III prescribes various structural details with which the building must conform. They include fire resist- ing material for the roof, stage staircases and dressing rooms of a certain type, seating arrangements, Corridors, exits and so forth. This part of the rules would apply to a building already in existence but not yet licensed for public performance as well as to one which has yet to be erected.

Part IV relates to the "Use of cinematograph Apparatus and other optical Lan- terns."

The rules prescribed there are mainly for purposes of health and safety.

Parts V and VI do not concern us. They prescribe spe- cial rules for Circuses and for exhibitions of Boxing and Wrestling.

Then comes Part VII which is material for present pur- poses. It is headed "Licenses". Rule 237 prescribes that "The person being the owner, tenant or occupier of such premises and the person who proposes to give any public performance, entertainment or exhibition on such premises shall each take out a license under these rules"

Then follows a sub-heading "Licenses for Premises" and under that come Rules 238 to 257. Rule 23S prescribes that :-

"No such premises shall be opened, or kept open for use as a place of public amusement unless the person being the owner, tenant or occupier thereof shall have obtained from the Commissioner the necessary license." Rule 248 invests the Commissioner with "absolute discretion in refusing any license etc... if such place appears to him likely to cause obstruction, inconvenience, annoyance, risk, danger or damage to resi- dents or passers-by in the vicinity of such premises." Then follows Rule 250 which is crucial here. It says : "The commissioner shall have power in his absolute dis- cretion at any time to cancel or suspend any license granted under these Rules..."

After Rule 257 comes a second sub-heading entitled "Per- formance License" and Rules 258 to 28:3 set out the require- ments relating to the holding of performances as distinct from the requirements relating to the building or premises in or on which they are to be held. The rest of the rules do not concern us.

It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for pur- poses of public amusement is the Commissioner of Police. It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the rules. But the power to do so is vested in him and not in the State Govern- ment and can only be exercised by him at his discretion. No other person or authority can do it.

It was argued that Rule 250 did not apply to licenses to erect buildings but only referred to other matters such as their maintenance and the kind of performances to be given in them. We are unable to agree.

The preamble to the rules states that the Rules are for the "licensing, controlling, keeping and regulation" of places of public amusement in the City Bombay. Part II which deals with the erection cinema houses nowhere autho- rises the issue of a license but it does indicate that a license is necessary. For instance, the heading states that the rules which follow in Part II are only the "prelimi- naries to obtaining license for premises" and Rule 21 sets out that "Before a license is granted...for such premises" certain certificates must be produced. All of which indi- cates that a license is necessary. But the only provision the actual issue of the license is in Part VII, and Rules 237 and 238 in that part require the owner, tenant or occu- pier of premises intended to be used for a cinema house for public amusement to take out a license as well as for the person who proposes to give a public performance on such premises. In our opinion, Rule 250 does authorise the can- cellation of a license already issued but the only person who can effect the cancellation is the Commissioner of Police.

It was contended that this would work great hardship in some cases and that if money had already been expended on the building an estoppel at least would arise. No question of estoppel has been raised here, so that is not a question we need consider nor need we answer the converse question whether an estoppel would hold good in the face of a law enacted for the public good on grounds of public policy; also whether there can be an estoppel when a person builds knowing the risk he runs of cancellation at any time under Rule 2S0.

The next question is whether an order in the nature of a mandamus can issue under section 45 of the Specific Relief Act. It is necessary to emphasise that the present case does not fall either under article 32 (2) or article 226(1) of the Constitution. We are confined here to section 45 of the Specific Relief Act.

The jurisdiction,conferred by. that section is very spe- cial in kind and is strictly limited in extent though the am but of the powers exercisable within those limited is wide. Among the limitations imposed are the following: First, the order can only direct some specific act to be done or some specific ,act to be forborne. It is not possible therefore to give a mere declaratory relief as under section 42 . Next, because of the proviso, the order can only be made if the doing or the for bearing is clearly recumbent upon the authority concerned under any law for the time being in force. And thirdly, there must be no other specific and adequate legal remedies available to the applicant. Now applying these rules to the present case, the appli- cant must show what specific act he wants to. be done or to be forborne. That can only be gathered from the petition. The reliefs specifically sought there are (1) an order directing the Commissioner to withdraw the cancellation and/or (2) directing him to grant permission for the erec- tion of a cinema.

Taking the second. first, it is evident from the rules that there is no specific law which requires the Commission- er to grant a license on the fulfillment by the petitioner of certain conditions. He is vested with a discretion to grant or to refuse a license and all that the law requires is that he should exercise that discretion in good faith. But that he has done. In the exercise of that discretion he granted a license and that license still holds good because, on the view we have taken, there has been no valid order of cancellation. Accordingly, this relief cannot be granted. Turning next to the first relief, that cannot be grant- ed in the form in which it is sought because the rules vest the Commissioner with an absolute discretion to cancel at any time a license once granted. There is no specific law which compels him to forbear from canceling a license once granted in fact that would be an impossibility; still less is there any law which compels him to withdraw a cancella- tion already effected: that would fetter the absolute dis- cretion vested in him by Rule 250. Therefore, this relief cannot be granted in the way it is asked for. But we are of opinion that we are free to grant the respondent a modification of that relief in a different form. It is to be observed that the petitioner did ask that he be granted "such further and other relief as the nature and circumstances of the case may require."

We have held that the Commissioner did not in fact exercise his discretion in this case and did not cancel the license he granted. He merely forwarded to the respondent an order of cancellation which another authority had pur- ported to pass. It is evident from these facts that the Commissioner had before him objections which called for the exercise of the discretion regarding cancellation specifi- cally vested in him by Rule 250. He was therefore bound to exercise it and bring to bear on the matter his own inde- pendent and unfettered judgment and decide for himself whether to cancel the license or reject the objections. That duty he can now be ordered to perform under section 45 . It was objected as to this that there is no specific law which compels him to exercise the discretion. Rule 250 merely vests a discretion in him but does not require him to exercise it. That is easily met by the observations of Earl Cairns L.C. in <ORG> in <NAME> v. Lord Bishop of Oxford(i), observations which have our full and respect- ful concurrence :--

"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

The discretion vested in the Commissioner of Police under Rule 250 has been conferred upon him for public rea- sons involving the convenience, safety, (1) 5 App. Cas. 214 at 222, 223.

morality and welfare. of the public at large. An ena- bling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor can it be evaded; performance of it can be compelled under section 45 . It was then objected that performance cannot be com- pelled for another reason. Section 45 , it was said, is limited to duties which must be performed or forborne "under any law for the time being in force," and it was argued that this means statute law. There is authority for this point of view, but we see no reason for limiting the clear words of the section or for reading into it matter which is not there. The provision is a beneficent one to compel the performance of public duties by public officers. It is intended to open up a swift and summary remedy to the subject against, on the one hand, certain kinds of abuse or excesses on the part of public officers or, on the other, of laziness, incompetence, inertia or inaction on their part. We can see no reason why statutory duties should be placed on any different plane from other duties enjoined by any other kind of law, especially as some. statutory duties are slight or trivial when compared to certain other kinds of duties which are not referable to a statutory provision. In our opinion, the words "any law" are wide enough to embrace all kinds of law and we so hold. The only other point we need consider is whether "the applicant has no other specific and adequate legal remedy." It was contended on behalf of the appellant that the re- spondent could have ignored the so called order of cancella- tion if he considered it was of no effect; alternatively, he had the specific legal remedy of suing for an injunction which could have accorded him adequate relief. In our opinion. the first is neither a specific nor an adequate legal remedy. Here is an order purporting to emanate from <ORG> itself served on the respondent by a responsible public officer. Whether, the order is his order or an order of <ORG> it is obviously one which primarily compels obedience as a matter of prudence and precaution. It may in the end prove to be ineffective, as has happened in this case, but it would be wrong to expect a person on whom it is served to ignore it at his peril however much he may be legally entitled to do so. Also, the very fact that this order was served on him, especially when it followed on the Commissioner's letter of the 19/20th September, 1947, indicated that objections of a serious nature which it was the Commissioner's duty to consider had been raised. The respondent had a right to expect the Commissioner to make up his mind and reach a decision, otherwise it left him in a state of uncertainty. If he commenced to build, the Commissioner would have a right to take action under Rule 250 and tell him to stop, and at best that would involve the respondent in a long and expensive litigation which he might or might not win. We are clear that he had a right to be told definitely by the proper legal authority exactly what he might or might not do, so that he could adjust his affairs. We are clear that the dangerous course of ignoring an official order at one's peril is not the kind of adequate and specific legal remedy contemplated by section 45 .

Next, as regards the relief of injunction. We do not say that would not be a proper and adequate remedy in certain cases. Each case must necessarily depend on its own facts and we have no intention of laying down any hard and fast rule. But we do not think that would be adequate to meet the exigencies of the present case. In the first place, a suit, if lodged, would require notice under section 80 of the Civil Procedure Code as it would be a suit against a public officer in his official capacity, and that would at once import delay; so would the long drawn out procedure of civil litigation with its concomitant appeals. In a commer- cial undertaking of the kind we have here, inordinate delay might well spell ruin to the project. Large sums of money have necessarily to be tied up  so long as the matter remains in abeyance, the prices of land and materials are constantly rising and there is in the vicinity a rival theater which is all the while acquiring reputation and goodwill, two undefinable but important considerations in commercial undertakings. It is therefore desirable that questions of the kind we have here should be decided as soon as may be It may be that any one of those considerations taken separately might not be enough to fulfil this requirement of section 45 , but considered cumu- latively we are of opinion that the applicant has no other adequate remedy in tiffs case. In any event, there are many cases of a similar nature in which section 45 has been applied without objection despite the fact that an injunc- tion could have been sought. We need only cite a decision of <ORG> of the Privy Council (A1cock, <CITATION> ) (1) where Lord <NAME> says at page 233 :-

"To argue that if the <ORG> says that a public officer, even a revenue officer, shall do a thing, and he without cause or justification refuses to do that thing, yet the Specific Relief Act would not be applicable, and there would be no power in the <ORG> to compel him to give relief to the subject, is to state a proposition to which their Lordships must refuse assent."

Their Lordships then issued an order under section 45 . Lastly, it was urged that the petition is incompetent because the provisions of section 46 of the Specific Relief Act have not been complied with, namely, the petitioner has not shown that he made a demand for justice and that it was denied.

The demand and denial which section 46 requires are matters of substance and not of form. In our opinion, there was a substantial demand here and it is clear that there was a denial. Soon after the order of cancellation was intimat- ed to the petitioner he instructed his solicitors to write to the Commissioner and enquire (1) 50 I.A. 227 at 233.

why the permission granted had been so arbitrarily can- celled. This was on the 18th November, 1947. The reply dated 3/4th December, 1947, was that the cancellation was under the orders of <ORG> and that they should be approached in the matter. <ORG> was approached. The petitioner's solicitors wrote to the Home Minister on the 9th December, 1947, and said :--

"Our client has not been informed of any reasons which had moved the Government to direct the cancellation of the permission. Our client was really entitled to be heard in the matter...Our client desires to present his case before you and he shall feel obliged if you give him an interview..."

The Secretary to <ORG> replied on the 12th of January, 1948, that the Commissioner was directed to cancel the permission in view of numerous protests which Government received. This was replied to on the 16th of February, 1948, and the petitioner's solicitors said :--

"Our client feels that he has not been treated fairly and that justice has been denied to him."

The only reply to this was :--

"I am directed to inform you that Government does not wish to add anything to the reply already given to you."

The correspondence read as a whole contains a clear demand for justice and a denial. It is true the actual demand was not made to the Commissioner nor was the denial by him but he clearly washed his hands of the matter by his letter of the 3rd/4th December, 1947, and referred the petitioner to <ORG> under whose orders he said he was acting. The demand made to <ORG> and the denial by them were therefore in substance a demand made to the Commission- er and a denial by him.

In any event, an evasion or shelving,of a demand for justice is sufficient to operate as a denial within the meaning of section 46 . In England the refusal need not be in so many words All that is necessary is to show that the party complained of has distinctly deter mined not to do what. is demanded (See 9 Halsbuy's Laws of Eng- land, <ORG> edition, page 772). And in the United States of America a demand is not required "where it is manifest it would be but an idle ceremony" (See Ferris on Extraordinary Legal Remedies, page 281). The law in India is not differ- ent except that there must be a demand and a denial in substance though neither need be made in so many words The requirements of section 46 were therefore fulfilled. The result is that in substance" the appeal fails though it will be necessary to effect a modification of <ORG> order. <ORG> directed the Commissioner of police to "Withdraw the order of cancellation passed by him." We have held that he did not make the order and that even if he did, a direction of that sort would not lie because of the discretion vested in him by Rule 250. The following will accordingly be substituted for what <ORG> has ordered:

The Commissioner of Police be directed to consider the requests made to him for cancellation of the license sanc- tioned by his letter dated the 14/16th of July, 1947, and, after weighing all the different aspects of the matter, and after bringing to bear his own unlettered judgment on the subject, himself to issue a definite and unambiguous order either canceling or refusing to cancel the said license in the exercise of the absolute discretion vested in him by Rule 250 of the Rules for Licensing and Controlling Theaters and Other Places of Public Amusement in Bombay City, 1914.

As the appeal fails except for the slight modification indicated above, the appellant will pay the respondent's costs.

Decree modified.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.