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1996 DIGILAW 500 (PAT)

Krishan Mohan Prasad v. State of Bihar

1996-08-13

D.S.DHALIWAL

body1996
Order Dr. Krishna Mohan Prasad, the petitioner, who is in custody in Special Case No. 49/96 under Sections 409, 420, 467, 468, 471, 472, 474, 1208 of the Indian Penal Code and Section 13(2) read with Sections 13(1)(c) and (d) of the Prevention of Corruption Act, has filed the instant petition for his release on bail on the solitary ground of his ill health. 2. The allegations against the petitioner are that while he was posted as Assistant Director in the Animal Husbandry Department, Ranchi he in conspiracy with the other officials of the Animal Husbandary Department and suppliers to the department prepared false and forged bills and on the basis of the same misappropriated government exchequer to the tune of more than rupees 19 crores during the period September, 1995 to December, 1995. 3. Learned counsel for the petitioner in the first instance contended that 1st proviso to Section 437 is in the nature of exception to the general Rule contained in Section 437(1) that any person if brought before the court other than the High Court and the court of Sessions, can be released on bail but he shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The proviso creates an exception to this rule laying down that the court may direct any person under 16 years of age, women, sick or infirm to be released on bail. Counsel maintained that this proviso creates a separate class of accused who are entitled to bail irrespective of seriousness of the allegations against them. Thus, according to the counsel the word 'may' used in this proviso means 'shall' and as the petitioner is suffering from a serious heart ailment he is entitled to bail. In this respect counsel for the petitioner submitted that while the petitioner was admitted in the hospital at Ranchi he was examined by Dr. S.N. Mishra on 30.6.1996 who found the petitioner to be a case of unstable angina and advised for early corollary Angiography which facility is not available in Bihar State. 4. In this respect counsel for the petitioner submitted that while the petitioner was admitted in the hospital at Ranchi he was examined by Dr. S.N. Mishra on 30.6.1996 who found the petitioner to be a case of unstable angina and advised for early corollary Angiography which facility is not available in Bihar State. 4. The learned counsel for the petitioner thereafter taking the court through the various reports and the medical history of the petitioner submitted that even if the provisions of 1st proviso are held to be directory and not mandatory even then the petitioner deserves to be released on bail on the ground of his failing health. On the other hand, learned Standing Counsel for the C.B.I. contended that the provisions of the proviso to Section 437(1) of the Code are not mandatory and are only of directory nature. Therefore, the petitioner is not entitled to bail as a matter of right on the ground of his ill health. Counsel maintained that no doubt, the petitioner had to be got admitted in the hospital at Ranchi where he was examined by a team of doctors and for that reason he could not be produced before the court on two dates but since his condition improved he was later on produced in court and he was discharged from the hospital on 18.7.1995 and shifted to Adarsh Jail, Beur, Patna. It is further submitted that on recommendation of the Jail doctor the petitioner has now been sent to Indira Gandhi Institute of Medical Science, Patna and the report of that Institute goes to show that the petitioner was advised corollary Angiography much earlier to his arrest in the year 1995 but the petitioner did not undergo that investigation. Counsel further submitted that the best medical care available is being provided to the petitioner as he is now under care of a cardiologist of Indra Gandhi Institute of Cardiology, Patna, which is a premier Institute of the State. The allegations against the petitioner are grave as he is involved in the case of fraudulent withdrawal of public money of more than rupees 19 crores and as such he does not deserve to be released on bail. 5. The allegations against the petitioner are grave as he is involved in the case of fraudulent withdrawal of public money of more than rupees 19 crores and as such he does not deserve to be released on bail. 5. The contention of the learned counsel for the petitioner that 1st Proviso to Section 437(1) of the Code are mandatory cannot be countenanced because perusal of the provisions contained in Chapter XXXIII of the Code relating the "provisions as to bail and bonds" would show that the Legislature has been using the word 'shall' wherever a provision is meant to be mandatory and has used the word 'may' where the Legislature thought it proper to leave the matter open, to the discretion of the court. In the three subsections of Section 437 of the Code the word used is 'shall' whereas in the proviso the word used is 'may'. Similarly the word 'shall' in Section 436 and the word 'may' in Section 439 makes it clear that the Legislature has consciously made a distinction between using the words 'shall' and 'may' contained in the various provisions. In this view of the matter, the petitioner even if found to be suffering from some serious ailment is not entitled to bail as a matter of right. 6. Now, it is to be seen whether the petitioner deserves to be released on bail on the health ground in face of prosecution allegations against him. There is no dispute that while in custody at Ranchi, the petitioner had to be admitted in the hospital where he was examined by a Cardiologist including Dr. S.N. Mishra who diagonised the petitioner as case of unstable angina and recommended for Angiography. While under treatment the condition of the petitioner improved and he was discharged and shifted to jail at Patna and now he is under treatment in one of the top health Institutes of Bihar State i.e. Indira Gandhi Institute of Cardiology. 7. No doubt, the Doctor, at Indira Gandhi Institute has also recommended for Angiography but Angiography in itself is not the treatment but it is only a step in the investigation of the disease. As per records Angiography was advised to the petitioner even much earlier to his arrest but it appears that he did not opt for it. 7. No doubt, the Doctor, at Indira Gandhi Institute has also recommended for Angiography but Angiography in itself is not the treatment but it is only a step in the investigation of the disease. As per records Angiography was advised to the petitioner even much earlier to his arrest but it appears that he did not opt for it. The prosecution allegations against the petitioner indicate that he was deeply involved in the conspiracy resulting in misappropriation of public money from the Government Treasury of more than 19 crores. The offence alleged against the petitioner is not only an offence against the State but it is an offence against the Nation and the very people. The petitioner and his co-accused by their alleged acts of commission and omission have made a deep cut on the jugular vein of the poor tax-payer of the country by fraudulently withdrawing and misappropriating the huge amount from the Government treasury. The investigation is yet at a crucial stage of collection of evidence. 8. Thus having regard to the facts and circumstances of the case, I am not inclined to grant bail to the petitioner. The petition for bail is, therefore, dismissed. 9. However, in case the petitioner intends to undergo Angiography, he may apply before the special Judge for being taken for the said test in proper custody to All India Institute of Medical Science, New Delhi, at his own risk and expense.