Calcutta High Court
Anuradha Khemka Nee Bansal vs Sudarshan Kumar Khemka And Anr. on 8 March, 2005
Equivalent citations: 2005(3)CHN179
JUDGMENT Amit Talukdar, J.
1. This is an application for cancellation of bail filed under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as the said Code) by the complainant/petitioner. She feels aggrieved by the interim bail granted to the opposite party No. 1 by the learned Sub-Divisional Judicial Magistrate, Bidhannagar on 21.1.2005 in connection with G. R. Case No. 530 of 2005 arising out of Lake Town Police Station Case No. 320 dated 20.12.2004 under Sections 417, 420, 354, 498A, 406 and 120B of the Indian Penal Code + Sections 3 and 4 the Dowry Prohibition Act.
2. Learned Senior Counsel appearing on behalf of the petitioner submitted that the interim bail granted by the learned Magistrate was passed on a holiday remand on the ground that the health condition of the opposite party No. 1 was not good; but, however, without looking into any medical documents the said order was passed. He further submitted that how could the learned Magistrate determine in the absence of any medical certificate as to the nature of the illness and the very basis of the order found on the ground of illness was vitiated by the error of judgment. Learned Senior Counsel submitted that in stead of acceding to the prayer of interim bail on the very first day the learned Magistrate should have awaited for the learned Public Prosecutor to make his submission. He referred to the order of the Transit Court which did not grant him bail on health ground. As such, how could a fresh cause of action, so far as it health is caused, arise within such a short period ? Learned Senior Counsel submitted that there was absolutely non-application of mind by the learned Magistrate while granting the prayer for bail and the same has to be cancelled.
3. Learned Senior Counsel for the petitioner referred to the decision of the Supreme Court in Puran v. Rambilas and Anr., 2001 SCC (Cri) 1124 : 2001 C Cr. LR (SC) 391 and submitted that the order passed by the learned Magistrate was absolutely on the basis of ignoring the materials and without giving proper reasons which were perverse and contrary to the principles of law and as such, on that ground that bail should be cancelled as the learned Magistrate did not go into the merit but, only on the ground of illness for which there was no document before the Court and exercise of the powers of bail on such premises was a perverse order.
4. Learned Senior Counsel for the opposite party No. 1 supported the order impugned and felt that there was no cause for interference with the same. He submitted that the materials against the opposite party No. 1 did not justify detention. As such he was rightly enlarged on bail; more so when the Investigating Agency did not ask for police remand for this opposite party No. 1 although there was prayer for remand in respect of another accused (Bikash Khemka). Learned Senior Counsel for the opposite party No. 1 submitted that the cancellation was prayed not on merit but on the ground of legal sanctity and it would be an extreme step for the Court to exercise its powers for cancellation after the learned Magistrate has formed an opinion and enlarged said opposite party No. 1 on bail.
5. Learned Senior Counsel for the opposite party No. 1 submitted that it was never a perverse order as the learned Magistrate on the basis of proper application of mind came to its finding. He submitted that actually the petitioner was very ill and was undergoing sustained treatment for a quite a length of time and his health condition would have been seriously affected if he was interned.
6. Learned Senior Counsel for the opposite party No. 1 referred to the decision of Mehboob Dawood Shaikh v. State of Maharashtra, 2004 SCC (Cri) 551 : 2004 C Cr. LR (SC) 441. He submitted that once bail has been granted cancelling the same amounts to take away the liberty and should not generally be resorted to. He next referred to the decisions of State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors., 2003(8) SCC 50 :2003 C Cr. LR (SC) 952 and Dolat Ram and Ors. v. State of Haryana, 1995(1) SCC 349 : 1995 C Cr. LR (SC) 124 referring to the said decisions learned Senior Counsel for the opposite party No. 1 submitted that while examining the prayer for cancellation it should have to be taken into account whether the accused is trying to tamper with the evidence after his release on bail; or, whether he is threatening the witnesses and has committed any further offence etc. As all these circumstances are absent in the present case, he saw no interference with the order.
7. Affidavits have been exchanged between the petitioner and the opposite party No. 1.
8. The Case Diary has been produced by the learned Junior Government Advocate. She submits that the opposite party No. 1 was under treatment in a hospital and pointed out to the materials as collected by the Investigating Agency; but, leaves the entire matter to the Court.
9. Affidavit-in-opposition filed on behalf of the opposite party No. 1 contains a list of medical treatment undergone by him. It further controverted all the allegations made against him by the petitioner.
10. Reply was filed in respect of the said affidavit by the petitioner herself denying the gravity of the health condition of the opposite party No. 1 and she also disputed the ailment of the opposite party No. 2.
11. Acting on the basis of the application for cancellation fled by the petitioner this Court stayed the order dated 21.1.2005 and fixed the matter to appear as an application has been thereafter heard at length on the basis of the affidavits exchanged between the parties.
12. Before proceeding further this Court addresses itself with regard to its powers vested under the Statute for cancellation of a bail granted by a Court earlier. Sub-section (2) of Section 439 of the said Code is the section which enables the Court to cancel the prayer for bail which can be exercised when there exists very cogent and overwhelming circumstances and the Court is of the opinion that continuation of the accused on bail pending investigation of Trial would neither be conducive for the purpose of proper investigation/trial or it would be amount to tampering the witnesses. Apart from the same, if on an erroneous premise bail is granted the same can also be interfered with and overwhelming important materials which if placed would not have persuaded the Court not to grant bail also can be the basis of an order of cancellation. In this context the ratio of decision of Puran (supra) is very much apposite and the Court most respectfully bows down to the ratio of the same.
13. It will now see whether there was any patent error on the face of it which vitiated the order of bail or the same was passed in oblivion to the materials which if placed would not have persuaded the Court to come to its impugned finding.
14. On the very first day of production the opposite party No. 1, who was brought on the basis of a Transit Remand before the learned Magistrate, was granted interim bail for the period of two months on "Considering the age and also the health condition as submitted by the learned Counsel,..." and on the undertaking medical certificate with regard to the ailment of the opposite party No. 1 will be produced on the next date. In default of which the interim bail would be cancelled.
15. Grant or refusal of bail is the absolutely discretion of the Court. When the learned Magistrate considered the 'age' and "health condition" and enlarged the opposite party No. 1 on interim bail it had exercised its discretion. Although this Court feels such discretion was not exercised in a perfect manner. It was incumbent on the learned Magistrate to have perused the medical certificates instead of relying on an undertaking and considered such prayer. It was also not appropriate to enlarge the opposite party No. 1 on interim bail for such a length of time (two months). But, the learned Magistrate being the Court of first instance after considering the 'health condition" formed an opinion "that bail can be granted to the accused Sudarshan Kr. Khemka."
16. Now, this exercise of power has to be looked into whether it had been sound or not.
17. Before proceeding further entire aspect of the matter which is seen from the ordersheet that before remanding the other accused (Vikash Khemka) to Police Remand the learned Magistrate did not comply with the provisions of Sub-section (4) of Section 167 of the said Code. However, even that may not be the subject-matter for discussion in this application the Court takes note of the same.
18. This Court now proceeds to see that how far it had impaired the finding of the learned Magistrate in the direction that the order was passed without looking into the materials in support of the "health condition" of the opposite party No. 1. As found earlier it was appropriate for the learned Magistrate to have insisted on the medical papers, which as rightly pointed out by the learned Senior Counsel for the petitioner, to form the basis of the order of interim bail in favour of the opposite party No. 1 but since that has not been done this Court has to assess the situation how far the judgment of the learned Magistrate in granting bail can stand vitiated in the absence of production of the same and what would have been the position had the papers been produced.
19. From the affidavit relied upon by the opposite party No. 1, which of course, has been controverted in her reply by the petitioner, this Court finds that the opposite party No. 1 was under sustained treatment. The list of treatment of the opposite party No. 1 shows he was under treatment of Prof. S. Kalyanaraman, Head of the Department of Neuro-Surgery, Senior Consultant-Neuro Surgeon, Apollo Hospital, Chennai and has been undergoing sustained treatment and after he was brought to Calcutta by virtue of Transit Remand the discharge certificate issued by Shree Vishudhanand Hospital & Research Institute, Calcutta shows that the opposite party No. 1 was admitted on 29.1.2005 and was discharged on 4.2.2005. Even if the learned Magistrate has not seen the paper and passed its order this Court feels after perusing the same there was no impropriety in exercise of power by the learned Magistrate in this particular case as it is of the view that the condition of health which is well in the mind of the learned Magistrate in enlarging the opposite party No. 1 on interim bail was otherwise not wrong.
20. Further a perusal of the Case Diary shows that medical papers were also seized by the Investigating Agency and were very much in the Case Diary. That way the submission of the learned Senior Counsel for the petitioner with regard to the condition of health and the reply used to the affidavit are not persuasive enough. It is also perceived from the initial Arrest Memo prepared by the Investigating Agency while taking the opposite party No. 1 on Transit Remand that he was suffering from high blood pressure and on the "Back side of head there is a mark of operation, right leg weaker.". Even the learned Ex-Additional Chief Metropolitan Magistrate, Mayo Hall, Bangalore City granting the Transit Remand recorded that "The accused No. 2 Sudarshan Khemka is permitted to have all the necessary medical help during the transit at his own cost.".
21. Such being the position, although the learned Magistrate who has not perused the medical papers, in so many words the order of interim bail passed in this case in respect of the present opposite party No. 2 cannot be faulted with as this Court for abundant precaution has considered the question from altogether different angle as if this Court was considering the prayer for interim bail in such a situation and it feels that no different conclusion could be arrived at except one that has been arrived at by the learned Magistrate.
22. That apart, after an order of bail is granted even on the basis of an exercise of discretion which may not be sound but that by itself will not form the basis of consideration of cancelling the same. While considerations for granting bail is one thing cancellation it is of a complete different consideration. Learned Senior Counsel for the opposite party No. 1 is absolutely correct in this aspect and the decisions cited by him in Mehboob Dawood Shaikh (supra) shows :
"Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to."
23. This Court has considered the position very carefully. It cannot come to the conclusion that the order was an improper Order and was without jurisdiction. The decision of Puran (supra) is the trite position in respect of cancellation of bail which was granted upon ignorance of materials and evidence on record without as it would be perverse and contrary to the principles of law, is quite distinguishable in the present fact situation as discussed hereinabove. Materials were there in support of the ailment of the opposite party No. 1. Learned Magistrate may not have looked into it in so many words but this Court feels after perusing the same that the order cannot be interfered with. As such, the said decision of Puran (supra) is quite distinguishable in the present case.
24. This Court has very very carefully perused the Case Diary. Even on the question of merit it feels that there is hardly any justification for interfering in the matter as the materials collected by the Investigating Agency do not implore this Court to proceed in that direction.
25. Considering the entire facts and circumstances of the case the prayer for cancelling the interim bail granted by the learned Sub-divisional Judicial Magistrate, Bidhannagar is rejected and the interim order granted by this Court earlier on 25.1.2005 is vacated.
26. Return the Case Diary.