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2011 DIGILAW 604 (GAU)

State of Mizoram v. Paul Zothanpuia John

2011-07-21

H.BARUAH

body2011
JUDGMENT H. Baruah, J. 1. In this petition the judgment dated 8.4.2011 passed by Addl. District and Sessions Judge, Aizawl in Bail Application No. 521 of 2011 arising out of Crl. Trl. No. 509 of 2011 is put in challenge. By the impugned order the Respondent herein was granted bail taking into consideration of the medical certificate issued by Dr. Laldinpuii Ralte, Medical Officer, Central Jail, Aizawl wherein it is indicated that Respondent needs treatment of his ailments outside the Central Jail as soon as possible. 2. The primary grievance of the Petitioner, the State of Mizoram is that at the time of hearing the medical certificate basing on which the impugned order was passed was not on record and for that no objection could be raised as to the medical certificate as indicated above by the State, the opposite party therein. Another objection is also taken that there is violation of the conditions imposed by the Addl. District and Sessions Judge. 3. We have heard Mr. N. Sailo, learned P.P. for the Petitioner, the State as well as Mr. Michael Zothankhuma, learned senior counsel assisted by Mr. Lalfakawma, learned Counsel for the sole Respondent. 4. During the course of argument it was argued by Mr. N. Sailo that the medical certificate, the foundation of the impugned order being not with record at the time of hearing on 8.4.2011, the Respondent therein became prejudice for consideration of the same after conclusion of the hearing. The aforesaid medical certificate was issued by the doctor concerned on 8.4.2011 i.e. the day on which the impugned order was passed. The aforesaid medical certificate having not been tagged with the application for bail, the consideration of the same behind the back of the Respondent, the State of Mizoram would be illegal and therefore, the impugned order dated 8.4.2011 is liable to be set aside and quashed and the matter is required to be remanded back to the court of Addl. District and Sessions Judge to afford an opportunity to the Petitioner herein to advance its argument in respect of the bail application filed by the Respondent. 5. It was further argued by Mr. N. Sailo, the learned P.P. that the medical certificate was placed before the Addl. District and Sessions Judge behind the back of the prosecution and thus obtained the impugned order in favour of the Respondent. 5. It was further argued by Mr. N. Sailo, the learned P.P. that the medical certificate was placed before the Addl. District and Sessions Judge behind the back of the prosecution and thus obtained the impugned order in favour of the Respondent. Referring to paragraph 6 of the impugned judgment it was submitted by Mr. N. Sailo, learned P.P. that at the time of hearing of the bail application, the medical certificate that considered by the Addl. District and Sessions Judge, Aizawl was not on record and therefore, the prosecution did not have the opportunity to argue on the medical certificate issued by the doctor concerned on 8.4.2011, the same being put before the Addl. District & Sessions Judge, Aizawl, subsequently, the foundation of the order cannot render the impugned order sustainable in law. In support of his contention, Mr. N. Sailo placed reliance in the decision rendered in the case between State of Manipur v. Dipak Kr. Das reported in 2006 (2) GLT 453. The Respondent in the case (supra) obtained bail order from the High Court by misrepresentation and suppression of facts. This High Court while deciding the case (supra) cancelled the bail of the Respondent holding that the authenticity of the letter is doubtful. Moreover, the Petitioner therein assailed the impugned order that the prosecution was not given any opportunity to produce the record for bail objection before granting bail to the Respondent. Mr. N. Sailo, therefore, taking recourse to the law laid down in the case (supra) submitted that since the prosecution was not heard in respect of the medical certificate that produced before the Addl. District and Sessions Judge, Aizawl subsequently, the State became prejudiced and a reasonable opportunity of being heard is required to be provided to the State, the Petitioner herein to object the bail application. Mr. N. Sailo, the learned P.P., therefore, urged that the matter may be remanded back to the court of Addl. District and Sessions Judge for a fresh hearing giving an opportunity to the State to object. 6. Contrary to the argument advanced by Mr. N. Sailo, learned P.P., Mr. Michael Zothankhuma, learned senior counsel submitted relying the ratio laid down by the Apex Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. District and Sessions Judge for a fresh hearing giving an opportunity to the State to object. 6. Contrary to the argument advanced by Mr. N. Sailo, learned P.P., Mr. Michael Zothankhuma, learned senior counsel submitted relying the ratio laid down by the Apex Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. reported in (1982) 2 SCC 463 that the impugned order is not liable to be assailed since it was passed basing on the records/documents filed in support of the application. It was also argued by him that the Addl. District and Sessions Judge, Aizawl was pleased to grant bail to the Respondent herein basing on the available documents. In respect of the availability of the medical certificate that considered by the Addl. District and Sessions Judge an affidavit is filed by the Respondent indicating therein that the medical certificate that considered by the trial judge was very much available with the record on the date of argument. The contention of Mr. N. Sialo, learned P.P. that it was not available at the time of hearing appears to have been refuted by the Respondent. The allegation of placing the medical certificate at a subsequent stage is wrong. Though the medical certificate was issued by the doctor on 8.4.2011, the same was filed at the time of hearing and the court basing on the medical certificate passed the impugned order. It was also argued by him that an application ought to have been filed before the court of Addl. District and Sessions Judge, Aizawl who passed the impugned order if the State found itself aggrieved by the order. Such application having not been filed immediately after, the application filed at the belated stage for cancellation of the bail is uncalled for. It was also submitted by him that if the State found that something have been recorded in the order or the judgment wrongly by the court, it was incumbent on the State, while the matter is still fresh in the mind of the judges to call the attention of the very judges that an error has crept in and if no such step is taken the matter must necessarily end there. Mr. Michael Zothankhuma further relies in the decision reported in 2001 (3) 355. In this context we may reproduce the paragraphs 8 and 9 of the judgment: 8. Mr. Michael Zothankhuma further relies in the decision reported in 2001 (3) 355. In this context we may reproduce the paragraphs 8 and 9 of the judgment: 8. Learned Counsel for the Petitioner submits that the learned Magistrate wrongly recorded the plea of guilt of the Petitioner. The Petitioner never pleaded guilt to the charge framed against him. Such type of wild allegation against Judicial Officer cannot be entertained in absence of any petition promptly filed by the Petitioner before the Court concerned seeking correction of any inadvertent recording in the judicial file. In this respect, profitable reference may be had to a reported case in State of Maharashtra, Petitioner v. Ramdas Shrinivas Nayak and Anr. Respondents, reported in AIR 1982 SC 1249 . In the aforesaid case, the Hon'ble Apex Court held that "the Judge's record was conclusive, none can claim to contradict it except before the Judge himself. 9. In the present case the learned Magistrate recorded in the plea of guilt on 12.3.2001 fixing the next date on 26.3.2001 and granted adjournment subsequently till the conviction was recorded on 30.8.2001. The accused-Petitioner got enough opportunity to approach the learned Magistrate to remove the wrong recording had it been actually there, but that was not done and as such in this stage, the aforesaid plea cannot be encouraged in order to maintain the judicial discipline. 7. Apparently, no application was filed by the State after passing of the impugned order for its correction on account of giving no opportunity of being heard in respect of the medical certificate that allegedly filed subsequently. To satisfy the filing of this present petition it was argued by Mr. N. Sailo, learned P.P. that the learned Special P.P. informed the matter to the Superintendent of Police by his letter dated 12th April, 2011 and requested to approach the High Court for cancellation of the bail of the Respondent and thereafter this application is filed on 9.6.2011. In the circumstances, it cannot be said that the present application is filed at a belated stage, Mr. N. Sailo, learned P.P. argued. 8. Admittedly, the Respondent herein was suffering from various ailments that evidenced from the annexures annexed to this petition. 9. While providing bail to the Respondent, the Addl. District and Sessions Judge, Aizawl imposed some conditions. In the circumstances, it cannot be said that the present application is filed at a belated stage, Mr. N. Sailo, learned P.P. argued. 8. Admittedly, the Respondent herein was suffering from various ailments that evidenced from the annexures annexed to this petition. 9. While providing bail to the Respondent, the Addl. District and Sessions Judge, Aizawl imposed some conditions. There is no allegation that the Respondent has violated any of the conditions as indicated in the impugned order. Admittedly, the bail was granted bail considering his ailments and requirement of outside treatment outside the Central Jail. Though it was argued that medical certificate that considered by the Addl. District and Sessions Judge, Aizawl was not on record at the time of hearing that contention cannot be accepted straightway since Mr. R.C. Thanga, the Special Public Prosecutor, author of the letter addressed to Superintendent of Police, Aizawl was not representing the State on the very day i.e. on 8.4.2011 rather one Mr. A.K. Rokhum, Public Prosecutor and K. Lalremruati Assistant Public Prosecutor appeared on the day for the State Respondent. The allegation of not affording an opportunity of being heard in respect of the medical certificate having been not made either by Mr. A.K. Rokhum, the Public Prosecutor or by K. Lalremruati A.P.P., the contention of Mr. R.C. Thanga cannot be accepted and acted upon. 10. In view of the facts and the circumstances of the case and the law laid down by the Apex Court and this High Court as referred to by Mr. Michael Zothankhuma this Court finds no ground to interfere with the impugned order. The facts pleaded in the case between State of Manipur v. Dipak Kr. Das reported in 2006 (2) GLT 453 appear not identical to the facts involved in this present petition. In the case (supra) the bail was obtained by misrepresentation and suppression of facts. In this present case we have not come across such misrepresentation or suppression of facts. This Court finds no merit in this criminal petition. 11. This Crl. petition, accordingly stands dismissed. Petition dismissed.