Aruna GOENKA v. RAJESH GOENKA — 1985 DIGILAW 425 (CAL)

JITENDRA NATH CHOWDHURY, J. ( 1 ) THIS is an application under section 439 (2) of the Code of Criminal Procedure, 1973 made by Smt. Aruna Goenka, wife of Sri Rajesh Goenka for cancellation of the bail granted to her husband, father-in-law, mother-in-law and her sister-in-law in connection with Karaya Police Station Case No. 236 dated 19-10-85. The F. I. R. in this case was lodged by the petitioner herself on 19-10-85 at 16-45 hours at the Karaya police station, the alleged incident having occurred according to her between 15. 00 hours and 15. 40 hours on the same date, inside the room of the married couple (i. e. the room of the petitioner! complainant and her husband) at No. 27, Ballygunge Park Road, Calcutta, which is about one kilo metre from the said police station. ( 2 ) IT is the case of the petitioner in the F. I. R. that she has been severely injured by her husband being aided and abetted by the other accused with a hot iron Press, and also by burning with the end of a lit cigerate on her breast and other parts of her body, by her husband on the 19th of October 1985. A certificate granted by doctor D. P. Saha dated the 19th of October 1985 (annexure B to the present petition affirmed on 30th October, 1985) shows that the petitioner was attended by him on the same date and he found multiple burn injuries over both the hands and trunks. The injuries were severe and might endanger the life of the patient. A subsequent detail report dated 24th October, 1985 was granted by the same doctor describing the position of the multiple burn injuries found by him on the petitioner on the 19th October 1985 (annexure B/i to the petition ). In the said report dated 24-i0-85 the doctor had again stated that the injuries were severe and might endanger the life of the patient. He found three burn marks on the upper portion of the right thigh, three marks on the left thigh, three marks on the lower abdomen, three big spots and five small ones on the left breast, three on the right breast, four burn injuries on the right hand and five burn injuries on the left hand. He found three burn marks on the upper portion of the right thigh, three marks on the left thigh, three marks on the lower abdomen, three big spots and five small ones on the left breast, three on the right breast, four burn injuries on the right hand and five burn injuries on the left hand. The burn on both the fore arms on both the dorsels and ventral aspects were very extensive forming blister which having burst were discharging serious feuding. Some of them had become infected. There were scratch mark also on her neck. The doctor had also noted in the said detailed report dated 24-10-85 that the patient told him that the incident occurred at 27, Ballygunge Park Road, Calcutta on 19-10-85 in the afternoon and that the injuries were caused by her husband Sri Rajesh Goenka, assisted by her father-in-law, mother-in-law and sister-in-law. ( 3 ) THE petitioner was further examined by Dr. (Mrs.) Bharati Pillari on 21. 10-85 and her report is Annexure HT to the petition, which shows that this doctor found burn injuries on her thighs, abdomen and breasts, and extensive burns on the fore arms on both sides. ( 4 ) ON the said F. I. R. lodged by her the present case under sec. 307/327/324/114 I. P. C. was started against her husband Sri Rajesh Goenka, father-in-law Sri Sawarmal Goenka, mother-in-law Smt. Sushila Goenka and sister-in-law Sm. Kavita Goenka who are the accused opposite parties in this application. It is the case of the petitioner in the said F. I. R. that that although at the time of her marriage, dowry in the shape of cash, jewellery, house hold articles, etc. of the value of about Rupees six lakhs as well as other very large amounts later, on demand, had been given, on 18-10- 85 and 19-10-85 the accused persons demanded for the purpose of some land properties another Rupees thirty lakhs, which they asked her to bring from her brother, and that the attack on her by the accused persons arose from the fact that her brother had not came with the money on 19-10- 85. The petitioners marriage on 6th May 1979 was a negotiated one, one male child having been born on 5th January 1982. The petitioners marriage on 6th May 1979 was a negotiated one, one male child having been born on 5th January 1982. ( 5 ) ALL the accused were arrested on 19-18-85 by the Karaya police station and on 20-10-85 were produced in custody before the court of the S. D. J. M. at Alipore with a prayer for police custody till 27-10-85, by the 1. 0. The learned Magistrate (Sri S. Bhalta. chatterjee) granted bail to Sri Sawarmal Goenka, Smt. Sushila Goenka and Kumari Kavita Goenka, but on a consideration of the materials before him he remanded the accused Rajesh Goenka to jail custody till 3-11-85. ( 6 ) ON 21-10-85 the case record was put up on the prayer of the learned lawyer for the accused Sri Rajesh Goenka before Sri S. A. Qayyume who was holding charge of the court of the S. D. J. M. , Alipore on that day. It was submitted that the accused Rajesh Goenka was sick and suffering from heart ailment. The petition filed before him on that day, inter alia, stated that your petitioner was remanded to J. C. yesterday. At the time of transmission into the jail he became extremely sick and he requires hospitalisation as the accused is heart patient. Ad-interim bail was prayed for. The learned Magistrate thereupon exparte directed the production of a Medical Certificate of the said accused by 22-10-85 and recorded in the said order that the entire matter under consideration would be considered on production of the medical certificate. No notice was directed to be given to the Public Prosecutor. No report from the Jail Doctor was called for. The learned lawyer for the accused Sri Rajesh Goenka also did not serve any notice on the Public Prosecutor. ( 7 ) ON 22-10-85 a certificate from one Dr. B. P. Saha to the effect that the said accused was under his treatment since 17-10-85 for Angina Peetoris and he had been advised rest, was filed before the said learned Magistrate, Sri S. A. Qayyume. Thereupon, the learned Magistrate recorded in his order dated 22-10-85 that the Medical Certificate showed that the accused is suffering from heart disease is sick today. The said learned Magistrate allowed the prayer for bail on compassionate ground with the condition that the accused was not to leave the jurisdiction of the local Police Station until fun her order. Thereupon, the learned Magistrate recorded in his order dated 22-10-85 that the Medical Certificate showed that the accused is suffering from heart disease is sick today. The said learned Magistrate allowed the prayer for bail on compassionate ground with the condition that the accused was not to leave the jurisdiction of the local Police Station until fun her order. Again, the entire matter even on 22-10-85 was heard exparte, without any notice to the State. Although in the petition for bail, only ad-interim bail had been prayed for, the learned Magistrate on 22-10-85 by his said order granted not ad interim bail but bail and that too, exparte. Even though the certificate from the said Dr. B. P. Saha dated 22-10-85 referred to 17-10-85 and in the petition for bail the case made out on behalf of the petitioner was that at the time of transmission to jail he became extremely sick, requiring hospitalisation, the learned Magistrate still did not think fit to call for any report from either the Superintendment or the doctor of the jail concerned. Again, the learned lawyer for the accused did not intimate the learned Public Prosecutor. ( 8 ) THE matter arising out of the present application affirmed on 30-10-85 came before the learned Division Bench of this court on various dates. Ultimately on 14-11-85 the learned, Vacation Judge (sitting singly), at the suggestion, of Mr. P. K. Dutt, Senior Counsel appearing on behalf of the accused Sri Rajesh Goenka directed the said accused to be examined at the Belle Vue Clinic by the Cardiology Department and subsequently by the Cardiology Department of the Calcutta Medical College, and for the said purpose gave liberty to the said accused to present himself for such examination outside the jurisdiction of Karaya police station. The matter was directed to appear before the appropriate Bench on 3-12-85 for confirmation. By a previous order of a Division Bench (Vacation Bench) of this court dated 6-11-85 it was directed that the question of cancellation of bail would be considered by the regular Bench after the Vacation. ( 9 ) IT has been urged on behalf of the petitioner that the said exparte order of Bail granted by the learned Magistrate on 22-10-85 is on the face of it bad. ( 9 ) IT has been urged on behalf of the petitioner that the said exparte order of Bail granted by the learned Magistrate on 22-10-85 is on the face of it bad. Moreover, allegations relating to tampering of an eye witness and of violation of the restrictive conditions of not leaving the jurisdiction of the local police station have been made against the accused Sri Rajesh Goenka. The prayer for cancellation of bail of the other three accused has not been pressed by Mr. Sankardas Banerji, learned counsel for the petitioner. ( 10 ) MR. N. A. Chowdhury, the learned Additional Public Prosecutor has supported this application for cancellation of bail of the accused Sri Rajesh Goenka. He has particularly laid stress on the fact that although on 20-10-85 the Investigating Officer had prayed for police custody for seven days, on both 21-10-85 and 22-10-85, the entire proceedings relating to the granting of bail was done without any notice to the State, when the materials did not justify any emergency. He has submitted that it is one matter for the State to appear and oppose bail, and a totally different matter if bail is granted exparte without any notice to the State, for in that event a long drawn process has to be gone through before any application for cancellation of bail can be moved on behalf of the State. He has submitted that bail should be cancelled, and that if the accused Sri Rajesh Goenka is sent to jail custody, permission to interrogate him with previous notice to the jail Superintendent should be granted to the Investigating Officer of this case, in the Jail premises. ( 11 ) MR. P. K. Dutt, the learned Counsel for the accused person, has submitted that the accused Sri Rajesh Goenka is suffering from Angina Pectoris. He has filed before us original Medical Certificate dated 25-11-85 and 27-11-85 given by Dr. J. C. Ghosh, Professor and Head of the Department of Cardiology, Medical College, Calcutta. In the certificate dated 27-11-85 Dr. Ghosh who had been engaged by the said accused to treat him, has stated that he found the accused Sri Rajesh Goenka to be suffering from Angina Pectoris at the Belle Vue Clinic. Xerox copies of certificates granted by Dr. J. C. Ghosh, Professor and Head of the Department of Cardiology, Medical College, Calcutta. In the certificate dated 27-11-85 Dr. Ghosh who had been engaged by the said accused to treat him, has stated that he found the accused Sri Rajesh Goenka to be suffering from Angina Pectoris at the Belle Vue Clinic. Xerox copies of certificates granted by Dr. Shyam Chowdhury who had also been engaged by the said accused to treat him, dated 15-11- 85 and 21-11-85 relating to the Slid accused have been annexed to the affidavit-in-opposition to the supplementary affidavit filed on behalf of the petitioner. Mr. Dutt has submitted that no reliance should be placed on the certificate of Dr. S. K. Biswas, Deputy Chief Cardiologist and in- charge I. C. C. U. of Betle Vue Clinic as in his submission the accused Sri Rajesh Goenka was never examined by the said Dr. Biwas. In the said certificate Dr. Biswas has inter alia Stated as follows: - We are enclosing herewith Pathological reports as well as Electro-Cardiograph report which are within normal limitstt. The said certificate as well as the said reports referred to therein are on the records in this case. Mr. Dutt has further submitted that Sri Rajesh Goenka was unable to have himself examined by the Cardiology Department of the Calcutta Medical College due to the illness of the said accused. The accused because of illness could not comply with this part of the direction contained in the said order dated 14-11-85 of the learned Vacation Judge of this court. No certificate has, however, been filed on behalf of the accused to substantiate that he was so ill as made it impossible for him to comply with the direction for his examination by the Cardiology Department, Calcutta Medical College. ( 12 ) MR. No certificate has, however, been filed on behalf of the accused to substantiate that he was so ill as made it impossible for him to comply with the direction for his examination by the Cardiology Department, Calcutta Medical College. ( 12 ) MR. P. K. Dutt, on being asked by the Court, has very fairly conceded that the said order dated 21-10-85 and 22-10-85 passed by Sri S. A. Qayyume, the learned Judicial Magistrate holding charge of the court of the Sub-Divisional Judicial Magistrate at Alipore on these dates should not have been passed exparte, without any notice to the Public Prosecutor and also that since the application filed on behalf of the said accused was that he had become extremely sick at the time of transmission to the jail, a report from the Jail doctor should have been called for the learned Magistrate. To quote his own words the heavens would not have fallen if the learned Magistrate had waited for another day and heard out the matter after giving notice to the State and getting a report from the Jail Doctor. He has, however, submitted that even if there has been a lapse on the part of the learned Magistrate, bail should not be cancelled, particularly because in his submission from the materials on record it will appear that Sri Rajesh Goenka is in fact suffering from Angina Pectoris. ( 13 ) IN this case, on the materials before him on 20-10-85 the learned Magistrate rejected the prayer for bail for the accused Sri Rajesh Goenka and remanded him to jail custody till 2-11-85. The only reasons why this order for jail custody was reversed on 22-10-85, exparte, by another learned Magistrate was on the compassionate ground that the accused is suffering from heart disease, is sick todaytt. In our view, there were no materials from which the learned Magistrate on 22-10-85 could possibly come to the conclusion that the accused Sri Rajesh Goenka is sick today. It is further our view that the facts of this case do not disclose any such urgency requiring the learned Magistrate to grant bail to the said accused without notice to the State and without calling for a report from the doctor of the jail concerned. Such unseemly hurry, as is disclosed, in the granting of bail on 22-10-85 was most improper and cannot, but he strongly condemned. Such unseemly hurry, as is disclosed, in the granting of bail on 22-10-85 was most improper and cannot, but he strongly condemned. A learned Magistrate granting bail in exparte proceedings during investigation, can be justified by the urgency of the situation in doing so. There was no such urgency in this case. The said exparte order dated 22-10-85 shows a total non-application of the mind on the part of the learned Magistrate concerned. ( 14 ) IN criminal Miscellaneous Cases No. 2096 and 2098 of 1985 (Promananda Das, Assistant Collector of Customs, Preventive, Legal v. Kishen Chand Gupta and Anr.) a Division Beach of this court M. N. Roy and A. C. Sengupta, JJ, on an application for cancellation of bail under section 439 (2) of the Code of Criminal Procedure, 1983 by the Customs Authority on 19-11-85, cancelled the bail on the ground that although initially bail had not been granted, the learned Sessions Judge ordered bail without serving any notice on the Customs authorities, even though notice had been served on the Public Prosecutor concerned. In that case, even though the accused had complied with the terms of the bail granted by the learned Sessions Court their Lordships holdt If there is such an irregularity as in this case. We feel the same cannot be regularised by the subsequent compliance of the order by the accused opposite party. Such being the position, we allow this application and cancel the bail which was granted on 25785ti. The said order of their Lordships was passed on 19-11-85. ( 15 ) THE only difference in the present case is that it is the defecto complainant and not the State who has applied for cancellation of bail. That, however, can hardly make any difference since the fact relating to the order for bail dated 22-10-85 by the learned Magistrate has been brought to our notice. It does not make any difference that it is the defecto complainant and not the State who has brought those facts to our notice. ( 16 ) THE Medical certificate relied on by the accused Sri Rajesh Goenka, even if accepted in to do, only go to show that the said accused is suffering from Angina Pectoris. These certificates do not snow any aggravation at any point of time. ( 16 ) THE Medical certificate relied on by the accused Sri Rajesh Goenka, even if accepted in to do, only go to show that the said accused is suffering from Angina Pectoris. These certificates do not snow any aggravation at any point of time. Even relying on those certificates of the Doctors who are all private doctors of the said accused there is no material before us that the said accused is physically in a condition which would make it undesirable to commit him to jail custody. On the facts of this case, to hold otherwise would mean the laying down of the absurd proposition that no person suffering from Angina Pectoris should be ever committed to jail custody. ( 17 ) WE confirm the order of the learned Vacation Judge of this Court dated 14-11-85. Since we have after considering the materials before us, come to the conclusion that the said exparte order dated 20-10-85 of the learned Magistrate granting bail to accused, Sri Rajesh Goenka cannot be allowed to stand, for the reasons set out above, we refrain from going into the allegations relating to the tampering of a witness or the violation of the conditions of bail. We, therefore, have not considered those allegations at all and do not make any observation relating to the same. ( 18 ) WE allow this application for cancellation of bail of the accused Sri Rajesh Goenka and cancel the bail of Sri Rajesh Goenka. We direct that he be arrested forthwith and sent to jail custody for one week. We further direct that the Investigating Officer of this case will be permitted by the Jail Authorities concerned to interrogate the accused Sri Rajesh Goenka while in jail custody, upon prior notice to the Superintendent of the jail concerned. After being in jail custody for one week, the accused Sri Rajesh Goenka will be produced before the appropriate judicial authority, whereupon such further orders may be passed in accordance with Jaw as the said judicial authority may deem fit relating to the further detention or release on bail of the said accused. After being in jail custody for one week, the accused Sri Rajesh Goenka will be produced before the appropriate judicial authority, whereupon such further orders may be passed in accordance with Jaw as the said judicial authority may deem fit relating to the further detention or release on bail of the said accused. ( 19 ) SINCE this application for cancellation of bail is not pressed, as has been stated above, in as against the other three accused, namely, Sri Sawermal Goenka, Smt. Sushila and Smt. Kabita Goenka, we direct that the said three accused will remain on the same bail as before. ( 20 ) WE make it clear that whatever views we have expressed in disposing of this application for cancellation of bail, will in no way effect the merits of the case in proceedings hereinafter in connection with this case. ( 21 ) WE direct that a plain copy of the operative part of this order countersigned by the Assistant Registrar (Court) be handed over to the learned Advocates of the parties herein. All parties concerned including the police and the jail authorities will act on the said signed copy of this order. The application is disposed of accordingly. Application allowed.