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2005 DIGILAW 601 (PNJ)

Dalwinder Kaur Dhesi v. State Through C. B. I.

2005-05-16

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Smt. Dalwinder Kaur Desi is seeking quashing of the order dated 5.6.2004 (Annexure P-5) passed by learned Additional Sessions Judge, Patiala with a prayer that she be allowed to visit United Kingdom for her treatment and for celebrating the marriage of her son. 2. The petitioner is facing trial in a case registered as RC.5(S)/2000-SIU.I. dated 3.10.2000. The case is now fixed for 28/30.5.2005 for prosecution evidence. The admitted position is that out of list of 110 witnesses to be exhausted by the prosecution, evidence of 26 witnesses have already been recorded and examination-in-chief of 27th witness is also concluded. The said witness is under cross-examination. The other admitted position is that the present case was committed to the Court of Session for trial in October, 2001 and the trial had started on 10.11.2001. 3. I have heard Mr. R.S. Cheema, Senior Advocate assisted by Mr. P.R. Yadav, learned counsel for the petitioner and Mr. R.K. Handa, representing CBI. Mr. Handa is conducting the trial also as Public Prosecutor. All the documents attached to the instant petition have also been perused. 4. Mr. Cheema contends that the petitioner is a NRI having her passport in the name of Dalwinder Kaur Binnior as Binnior is her surname. The petitioner also mentioned herself as Dhesi. He then contends that the petitioner is suffering from recurrent attacks of depression for which she has been treated on several occasions since 1985. She is also suffering from diabetes mellitus. In the year 1990, the petitioner also suffered laportomy and division of Extensive Adhesion and total hysterectomy. In the year 1992, she had bilateral ooperectomy and appendicectomy. In the year 1996, she had to undergo pelvic floor repair. The petitioner is still suffering from stress incontinueua of urine. Her diabetes mellitus is poor controlled. The petitioner is also on Harmone Replacement Therapy once every six months. For all her treatment, the petitioner is being treated by her doctors in England. In the instant petition, the petitioner has given all the earlier history and I do not feel the necessity of entering into details. 5. Mr. Her diabetes mellitus is poor controlled. The petitioner is also on Harmone Replacement Therapy once every six months. For all her treatment, the petitioner is being treated by her doctors in England. In the instant petition, the petitioner has given all the earlier history and I do not feel the necessity of entering into details. 5. Mr. Cheema contends that on account of her ailments, the petitioner was allowed to visit United Kingdom for four weeks by this Court vide order dated 29.10.2002 and in compliance with the said order, the petitioner visited United KIngdom from 13.2.2003 to 6.3.2002, consulted her doctors and then returned to India. My attention in this regard has been drawn to the order dated 29.10.2002 (Annexure P-2). 6. Mr. Cheema then contends that in August, 2003, the condition of the petitioner started deteriorating and she sought clinical opinion from her earlier doctor (Dr. M.F. Hussain) telephonically who sent his report and on the basis of the said report, the petitioner moved an application before the trial Court for seeking permission to go to United Kingdom for three months attaching all the concerned documents but the application moved by the petitioner was dismissed vide order dated 5.6.2004 (Annexure P-5). The condition of the petitioner started deteriorating day by day and her depression entered a chronic phase for which she had been contacting the aforesaid doctor who vide his report dated 11.10.2004 (Annexure P-6) has advised her to visit United Kingdom. Mr. Cheema states that the problem which the petitioner is having in fact cannot be treated by any other doctor as the depression taking the chronic phase requires more or less a psychological treatment which the petitioner can get from the doctor of her faith only. The learned counsel then contends that may be as per the reply filed by the respondent-CBI, the facilities for the treatment of the petitioner are available in India but keeping in view the peculiar condition of the petitioner, she in fact requires the treatment from Dr. M.F. Hussain who had earlier been treating her. The other medical problems which the petitioner is presently having can only be treated under the therapy recommendation of Dr. Hussain. M.F. Hussain who had earlier been treating her. The other medical problems which the petitioner is presently having can only be treated under the therapy recommendation of Dr. Hussain. The learned counsel then contends that the apprehension of the CBI to the effect that if the petitioner goes abroad, she would not return to India is again unfounded in view of the fact that earlier also, the petitioner had reported back well in advance when she was allowed to fly abroad by the order of this Court. So far the status of the trial is concerned, there is no material change. 7. Mr. Cheema then states that the other ground taken by the petitioner for visiting United Kingdom is that the petitioner has to celebrate the wedding reception of her son Tanmanjit Singh who was married in India in February, 2005 and since all the family members of the petitioner are settled in United Kingdom, another reception is fixed there on 28.5.2005. He submits that the petitioner is ready to abide by all the conditions which may be imposed by this Court in the event of allowing her application. She also undertakes that her counsel would represent her in her absence and in case the trial Court adjourns the proceedings for a short date, the petitioner undertakes that her counsel would represent her in her absence and she would have no objection if the evidence is recorded in her absence. 8. The application has been opposed by Mr. Handa contending that the petitioner being an accused for the criminal conspiracy of murder cannot enjoy the privilege of visiting abroad for social celebration. So far as her medical treatment is concerned, she can get all the facilities which are available in India as well. Mr. Handa relies upon letters Annexures A & B in this regard. He then contends that since the husband of the petitioner and her parents have established business in United Kingdom, there is every likelihood that she would not return to India and in that eventuality a prayer shall have to be made to the Government of India for extradition. This all would stall the trial which is already in progress. 9. He then contends that since the husband of the petitioner and her parents have established business in United Kingdom, there is every likelihood that she would not return to India and in that eventuality a prayer shall have to be made to the Government of India for extradition. This all would stall the trial which is already in progress. 9. After hearing the rival contentions of both the sides, I am of the view that the present petition deserves to be allowed as the case of the petitioner appears to be very genuine on the face of it. So far as social celebrations are concerned, in my view, the petitioner might not be in a position to seek the exemption as she has otherwise celebrated the marriage of her son in India in February, 2005 whereas the next date fixed before the trial Court is 28/30.5.2005. In any case the petitioner cannot be allowed to fly before the next date fixed in the trial Court. On medical grounds, the petitioner certainly has a case for the relief sought in the instant petition. The earlier order (Annexure P-2) passed by this Court also indicates that on account of her ailments, she was permitted to leave India for four weeks on furnishing a bond of Rs. 2 crores with bank guarantee in the like amount. Admittedly, she had flown on 13.2.2003 and came back on 6.3.2003. This all speaks of her bona fides. 10. Keeping in view the entirety of facts of the case and the fact that the petitioner has not misused the concession of earlier order passed by this Court way back in October, 2002, it is ordered that the petitioner is permitted to leave India for four weeks from the next date fixed in the trial Court i.e. 30.5.2005. The petitioner shall be furnishing a bond of Rs. 2 crores with bank guarantee of the like amount to the satisfaction of trial Court after giving an undertaking that in case the proceedings before the trial Court are deferred to some short date after the next date fixed before it, the evidence to be recorded in her absence would binding on her and she would also not raise any dispute about her identity. The passport which is stated to be with the trial Court shall be released to the petitioner in the event of her furnishing the requisite bond. The passport which is stated to be with the trial Court shall be released to the petitioner in the event of her furnishing the requisite bond. After her return the petitioner shall be moving an application before the concerned Court within a week notifying her arrival. The passport shall also be surrendered before the Court after the return and in that eventuality only, the petitioner shall be released to her bond. 11. The main petition stands disposed of. 12. Copy of the order be given Dasti to the learned counsel for either side on payment of usual charges.