Karnataka High Court
Dr S K Guharoy vs State Of Karnataka By on 27 February, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No.6877/2012
BETWEEN:
Dr.S.K.Guharoy,
Aged about 42 years,
Medicare Hospital,
Bhuvaneshwarinagar,
Sulthanpalya Main Road,
Bangalore-560 032. .... Petitioner
[By Dr.S.K.Guharoy, Party-in-Person]
AND:
1. State of Karnataka,
By Hebbal Police Station,
Bangalore City,
Bangalore-560 032.
2. Gultaj,
Aged about 35 years,
W/o. Nayaz,
Residing at No.49, IV Main,
Bhuvaneshwarinagar,
Bangalore-560 032. ....Respondents
[By Sri. Rajesh Rai.K., HCGP for R-1;
Sri. Arun.K.S. for M/s. Vallari Associates, Advocates for R-2]
2
This Criminal Petition is filed under Section 439 (2) of
the Cr.P.C., praying to set aside the order dated 30.10.2012
in Crl. Misc.No.4868/2012 passed by the Presiding Officer,
Fast Track Court-VIII, Bangalore City and allow the
application filed by the petitioner by cancelling the bail
granted in Crl.Misc.No.3502/2012 passed by the Presiding
Officer, Fast Track Court-VIII, Bangalore City dated
16.07.2012.
Reserved on : 29.01.2013
Pronounced on : 27.02.2013
This Criminal Petition having been heard and reserved
for orders, coming on for pronouncement of order this day,
the Court made the following:
ORDER
This petition is filed under Section 439(2) of Cr.P.C., seeking cancellation of bail granted to the 2nd respondent by the Fast Track Court - VIII, Bangalore City, by its order dated 16.07.2012 passed in Criminal Misc. No.3502/2012.
2) Petitioner is the de-facto complainant before the Hebbal Police, on whose report, case in Crime No.283/2011 for the offences punishable under Sections 506 & 420 of I.P.C. came to be registered against the 2nd respondent herein on 04.11.2011. When the matter was under
investigation, the 2nd respondent herein, apprehending her 3 arrest by Hebbal Police in connection with the aforesaid case in Crime No. 283/2011 registered for non-bailable offence, namely Section 420 of I.P.C., approached the sessions Court in Bangalore City under Section 438 of Cr.P.C. seeking the relief of anticipatory bail. The said petition came to be registered as Criminal Misc. No. 3502/2012. To the said petition, Respondent No.2 herein arraigned the Hebbal Police, Bangalore, as the respondent. The said petition was contested by the Public Prosecutor by filing a detailed objections.
3) After hearing both sides, the learned Presiding Officer of the Fast Track Court-VIII, Banglaore City, to which the said petition was made-over, by his order dated 16.07.2012 allowed the said petition and granted the relief of anticipatory bail to Respondent No.2 herein subject to several conditions. Subsequently, on completion of investigation, the charge sheet came to be laid for the offences punishable under Sections. 420, 448, 504, 506 r/w. 34 of I.P.C.4
4) On coming to know of grant of anticipatory bail to Respondent No.2 herein, the petitioner filed a petition under Section 439(2) of Cr.P.C. before the learned Sessions Judge in Criminal Misc. No. 4868/2012 seeking cancellation of anticipatory bail. The cancellation was sought on the ground that Respondent No.2 herein, who was the petitioner in Criminal Misc. No. 3502/2012, by suppressing and misrepresenting the facts, has obtained the order of bail. The said petition was contested by Respondent No.2 herein.
5) The learned Sessions Judge after hearing the learned counsel appearing on both sides, by the order dated 30.10.2012 dismissed the said petition holding that no grounds are made-out for cancellation of the bail. Therefore, the petitioner is before this Court. In the meanwhile, pursuant to the summons issued by the jurisdictional Magistrate, Respondent No.2 appeared before the court and she was granted regular bail under Section 437 of Cr.P.C.
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6) Upon service of notice of this petition, Respondent No.2 appeared through her counsel and has filed detailed statement of objections.
7) In this petition, the petitioner has contended that he is practicing as a consultant cardiologist, Diabetologist and physician for the last 8 to 10 years in Bangalore and at present he is running a 15 bed hospital in Bhuvaneshwarinagar, Sulthanpalya, Bangalore and that he hails from a respectable family from Culcutta; that he filed a report against the 2nd respondent on 04.11.2011 before the PSI, Hebbal Police Station inter alia alleging that she after taking treatment in his hospital as inpatient between 11.10.2011 and 13.10.2011, and 17.10.2011 to 19.10.2011, as on the date of the discharge, though she was due in a sum of Rs.2,000/- towards the hospital charges, by promising to pay the said amount within a short period, got herself discharged from the hospital and thereafter, failed to pay the same and when the complainant demanded her to pay the said amount, she 6 along with her henchmen came to the hospital at about 7.30pm on 04.11.2011, trespassed into the hospital, abused the complainant in filthy language, threatened him with injury to his life and caused damage to the properties in the hospital. Thus the petitioner committed the aforesaid offences; that as a counterblast to the complaint lodged by the petitioner, the 2nd respondent filed a report before the police, based on which the case in Crime No. 284/2011 came to be registered against the petitioner. But the police after investigation, found no truth in the said complaint, therefore, filed 'B' summary report, which came to be accepted by the jurisdictional court and that was not challenged by her; that the investigation of the case registered on the basis of the complaint filed by the petitioner was later transferred to R.T. Nagar Police and this was within the knowledge of the 2nd respondent and in spite of the same, while she filed the petition under Section 438 of Cr.P.C. before the sessions court, deliberately made Hebbal Police as respondent and also by suppressing the fact of the police filing 'B' summary report in the case 7 registered on the basis of complaint and without producing any document in support of her allegation of wrong diagnosis by the petitioner and she having taken the second opinion in that regard, sought the relief of anticipatory bail and the learned Sessions Judge without application of mind to these factors, granted the relief of anticipatory bail. Therefore, the order granting anticipatory bail is vitiated and as such, it is liable to be cancelled.
8) Though in her statement of objections, Respondent No.2 has taken-up several contentions
touching the qualification of the Doctor and also the fact of his running hospital, has contended that there are no justifiable grounds for cancellation of bail. She has further contended that, very strong and special circumstances are required to be made-out by the petitioner for cancellation of bail and since no such circumstance is made-out, the bail granted cannot be cancelled. She has denied the allegation that she suppressed or misrepresented the facts before the sessions court for getting an order of anticipatory bail. 8 According to her, the contentions urged by her in the petition filed before the sessions court are all in the nature of defence pleas and at the stage of consideration of the bail, there was no requirement on her part to prove those facts, as she would have an opportunity to substantiate such contentions during the trial of the case. Therefore, she contended that there was no suppression or misrepresentation of any of the facts, as such, there is no justifiable grounds for cancellation of bail.
9) I have heard the petitioner: party-in-person and also the learned counsel appearing for Respondent No.2. In the facts and circumstances of the case, the point for consideration is, whether the petitioner has made-out sufficient grounds for cancellation of bail granted in favour of Respondent No.2.
10) As noticed supra, except the offence punishable under Section 420 of I.P.C. all other offences alleged in the charge sheet are bailable offences. The offence punishable under Section 420 of I.P.C. is non-bailable. Admittedly, 9 Respondent No.2 had been arraigned as accused in the case registered by the jurisdictional police on the basis of the report lodged by the petitioner. Therefore, the apprehension of Respondent No.2 that she was likely to be arrested in connection with the said case was well-founded. In her petition filed under Section 438 of Cr.P.C. before the sessions court, Respondent No.2 inter alia contended that, she is innocent of the charges levelled against her for the offences punishable under Sections 420 and 506 of I.P.C.; that she has valid and tenable grounds of defence; that she has been falsely implicated in the case; that she was admitted to the Medicare Hospital for treatment for Typhoid and due to wrong diagnosis and treatment of Dr. Guharoy, she developed complications; that she was admitted to the same hospital five times in an interval of a day or two and on every such admission, the complainant-Doctor went on diagnosing it as a new ailment and charged exorbitantly, therefore, she got suspicion and went for the second opinion, on which, she came to know that those complications were due to wrong treatment; that when she 10 went to enquire about the wrong treatment and also heavy charges, the complainant got enraged and abused her, in respect of which incident, she lodged a complaint before the police, based on which the case in Crime No.284/2011 came to be registered for the offence punishable under Section 420 of I.P.C. against the complainant and in order to save his skin and also under fear of his image being tarnished, the complainant lodged a false complaint to take revenge against her. Thus, from the above, it is noticed that Respondent No.2 in support of her prayer for the relief of anticipatory bail, put-forth her case. Of course, she has not stated as to what was the stage of investigation in Crime No.284/2011. According to the petitioner herein, even on the date of presentation of the petition by the 2nd respondent for grant of anticipatory bail, the police had already filed 'B' summary report in Crime No.284/2011 and the said fact had been completely suppressed. Though the petitioner herein has shown that the police filed 'B' summary report in relation to the case in Crime No.284/2011, it is not forthcoming as to when the said 'B' 11 summary report was filed before the court and whether the Respondent No.2 had knowledge of the police filing 'B' report, as on that date when she presented the petition for anticipatory bail. Therefore, it was open for the public prosecutor, who contested the said petition, to bring the said fact to the notice of the court. Therefore, it cannot be said that Respondent No.2 had suppressed any material facts. No doubt, as contended by the petitioner, along with her petition for anticipatory bail, the 2nd respondent did not produce any documents to show that she took a second opinion from another doctor and that revealed there was a wrong diagnosis. However, at the stage of consideration of the bail application, the 2nd respondent was not required to prove such facts. Those contentions are in the nature of defence in the case registered against her. Therefore, she was not required to place any evidence. Therefore, on that ground it cannot be said that the 2nd respondent had made misrepresentation of facts. Of course, in the said petition for anticipatory bail, Hebbal police station was arraigned as respondent. In the case registered in Crime No. 283/2011, 12 respondent No.2 arraigned as an accused, admittedly, had not been arrested by the police. If the investigation of the case had been transferred from Hebbal police station to R.T. Nagar police station, either by police on their own motion or at the instance of the petitioner herein, it is not shown that the said fact was within the knowledge of the 2nd respondent. The said fact was also not brought to the notice of the court by the public prosecutor. Therefore, there is no substance in the contention of the petitioner that Respondent No.2 had suppressed and misrepresented the facts and that deliberately she arraigned Hebbal Police as respondent, instead of R.T. Nagar police.
11) It is well-settled law by catena of decisions that, rejection of bail when bail is applied for is one thing, whereas cancellation of bail already granted is quite another. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted, only if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the 13 accused to retain his freedom during the trial. Cogent and overwhelming circumstances are necessary for cancellation of bail already granted. In the case on hand, cancellation of bail was not sought on the ground that Respondent No.2 had misused the discretion exercised in her favour nor on the ground that subsequent conduct on the part of the 2nd respondent disentitles her from discretionary relief of bail. However, as noticed supra, cancellation of bail was sought only on the ground that there was suppression and misrepresentation of facts and that though no evidence had been produced to substantiate those facts, the court granted the relief of bail, therefore, the order granting bail is perverse. As discussed supra, there was no suppression or misrepresentation of facts by Respondent No.2.
12) In the light of the discussions made above, there is no substance in the contentions urged in support of cancellation of bail.
13) It is well-settled law that pre-trial detention is not as a measure of punishment. The person accused of an 14 offence is presumed to be innocent till the guilt is proved beyond reasonable doubt, is the well recognized criminal jurisprudence. As noticed supra, offence punishable under Section 420 of I.P.C. is non-bailable. The said offence is also not punishable with death or life imprisonment. Even according to the petitioner, Respondent No.2 used to visit his hospital for a long time. Petitioner allowed her to be discharged from the hospital though she was due in a sum of Rs.2,000/-, which sum respondent No.2, failed to pay later. This is the accusation made against Respondent No.2 in respect of the offence under Section 420 of IPC. Respondent No.2 is a woman. Therefore, it cannot be said that the sessions court has committed any error in granting the relief of anticipatory bail. At that stage, court was not required to evaluate the evidence. The court was required to find-out as to whether the apprehension expressed was reasonable and whether the applicant is entitled for the relief of anticipatory bail, taking into consideration the nature and gravity of the offences and the nature of the evidence available at that stage. In such proceeding, the 15 applicant is not required to prove that the case registered against him/her is totally false. That exercise has to be undertaken by the court during the trial of the case. Therefore, on the grounds urged by the petitioner, the bail granted cannot be cancelled. In that view of the matter, the learned Sessions Judge is justified in rejecting the petition filed by the petitioner for cancellation of bail. I see no justifiable grounds to order cancellation of the bail. Hence, there are no merits in the petition, as such, it is liable to be dismissed.
14) Before parting with the case, it is necessary to note that though Respondent No.2 in her petition filed for the relief of anticipatory bail had stated that she was admitted to Medicare Hospital and there was a wrong diagnosis by the petitioner-Dr. Guharoy, in the statement of objections filed before this Court, she has denied that the petitioner is an MBBS Graduate and has also denied that the petitioner is running a hospital. Be that as it may, I refrain from making any comment on those allegations and 16 leave it to the petitioner to take any action as is open to him under law, if he feel aggrieved by the same.
In the light of the above discussions, the petition is dismissed.
Sd/-
JUDGE KGR*