Akhtar Parwez vs The State Of West Bengal
2022 Latest Caselaw 1237 Cal

                     IN THE HIGH COURT AT CALCUTTA
                          Criminal Miscellaneous Jurisdiction
                                 APPELLATE SIDE

Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Sugato Majumdar

                                    CRM 7021 of 2021

                                    Akhtar Parwez
                                        versus
                                The State of West Bengal


For the Petitioner        :       Mr. Amit Desai, Ld. Sr. Adv.,
                                  Mr. Sekhar Basu, Ld. Sr. Adv.,
                                  Mr. Sudipta Maitra, Ld. Sr. Adv.,
                                  Mr. Rajdeep Mazumder,
                                  Mr. Kallal Mondal,
                                  Mr. Mayukh Mukherjee.



For the State             :       Mr. Saswata Gopal Mukherjee, Ld. P.P.,
                                  Mr. Neguive Ahmed, Ld. A.P.P.,
                                  Ms. Trina Mitra.




Hearing is concluded on   :       9th March, 2022.



Judgment On               :       16th March, 2022.




Tapabrata Chakraborty, J.

1. The present application for bail under Section 439 of the

Code of Criminal Procedure (in short, the Code) has been

preferred by the petitioner, namely, Akhtar Parwez, on behalf of

the accused, namely, Raghib Parvez, in connection with

Shakespeare Sarani Police Station Case no.159 of 2019 dated

17.08.2019 under Sections 279/304/308/427/201/212 of the

Indian Penal Code read with Section 3 of the PDPP Act and

Sections 119/177 of the Motor Vehicles Act.

2. Shorn of unnecessary details, the facts are that in

connection with Shakespeare Sarani Police Station Case no. 159

of 2019 dated 17.08.2019, the accused was arrested on 21st

August, 2019. Upon completion of investigation charge sheet

was submitted on 18th September, 2019. The case was thereafter

committed to the Court of the learned Chief Judge, City Sessions

Court. On 12th March, 2020 an application was filed by the

petitioner under Section 329 of the Code before the learned

jurisdictional Court. While in judicial custody, the accused was

admitted in the Institute of Psychiatry, Kolkata (in short, the said

Institute) and on 7th April, 2020, he filed an application before

this Court under Section 330 readwith Section 439 of the Code.

Considering a medical report dated 16th March, 2020 issued by

the Director of the said Institute, an interim bail for a period of

two months was granted by this Court on 8th April, 2020.

Seeking permission to take the accused to Bangalore for better

treatment, an application for modification of condition of bail was

preferred by the petitioner and by an order dated 21 st September,

2020, a report was called for from the Superintendent of the said

Institute. Pursuant to such direction, a report was furnished on

20th October, 2020. Considering such report, the interim bail

granted earlier was extended for a period of 4 months granting

liberty to the accused to have himself treated in the National

Institute of Medical Health and Neurosciences, Bangalore (in

short, NIMHNS). Thereafter on 23rd February, 2021, upon

examining the accused, NIMHNS submitted a report observing

inter alia that the accused is fit to face the trial procedures.

Thereafter, the bail application came up for final hearing and by

an order dated 13th April, 2021 the same was dismissed.

Aggrieved thereby, the petitioner preferred a Special Leave

Petition before the Hon'ble Supreme Court. The same was also

dismissed by an order dated 19th April, 2021. In the midst

thereof, the accused filed an application on 18th February, 2021

in continuation of the earlier application dated 12th March, 2020

filed under Section 329 of the Code. The said application and the

connected application for bail were rejected by the learned Court

below on 24th August, 2021. Thereafter, the present application

has been preferred by the petitioner on 26th October, 2021.

3. Records reveal that during pendency of the present

application, the accused was clinically examined by the members

of the Medical Board on 3rd December, 2021 and a report was

forwarded by the Superintendent, Presidency Correctional Home

vide memo dated 7th December, 2021. Thereafter the accused

was examined by the Medical Board twice on 20th December,

2021 and 25th January, 2022 and the reports were forwarded by

the Director of the said Institute.

4. Mr. Desai, learned senior advocate appearing for the

petitioner submits that the accused is suffering from Bipolar

Affective Disorder since the year 2016. Prior to the unfortunate

incident, he had to be admitted six times in different hospitals.

His ailments aggravated thereafter as would be explicit from the

report of the Medical Board dated 16th March, 2020. In spite of

administration of high doses of medicine there was hardly any

improvement and his condition deteriorated in the Correctional

home for which he had to be admitted in the said Institute on 3rd

May, 2021 and could not be produced before the learned Court

below on several occasions. He was ultimately discharged in the

month of February, 2022. A composite reading of the medical

reports would reveal that the accused needs continuous

treatment for Bipolar Affective Disorder. Thus, there can be no

doubt about the fact that the present health status of the

accused would face deterioration if he continues to remain in

custody. In similar fact situation and in cases of Bipolar Affective

Disorder, Court had always exercised discretion in favour of the

ailing persons in custody. In support of such contention, Mr.

Desai had placed reliance upon the judgments delivered in the

cases of Deepak Surendran -vs- Sub Inspector of Police and

Another, reported in 2019 SCC OnLine Ker 16606, Virender -vs-

State of Haryana, reported in 2015 SCC OnLine P&H 12484,

Sasidharan-vs- State of Kerala, reported in 2018 SCC OnLine Ker

2202 and in the case of Dr. P.V. Varavara Rao -vs- National

Investigation Agency and Another, reported in 2021 SCC OnLine

Bom 230.

5. He contends that Section 439 of the Code empowers the

Court to grant bail to a person on medical ground. The petitioner

is suffering from Bipolar Affective Disorder which is a severe

mental illness. In support of such contention he has placed

reliance a judgment delivered in the case of 'X' versus State of

Maharashtra, reported in (2019) 7 SCC 1. Continuous

incarceration of the accused whether in jail or in a jail like

situation, keeping him away from his near and dear ones, will

aggravate his mental illness. In such circumstances, the Court

can grant him bail and hand him over to his relatives, who are

ready to take care of him.

6. According to Mr. Desai, bail jurisdiction of the Court

under Chapter XXXIII of the Code is wide and vast.

Consideration of health condition is within the domain of Section

439 of the Code. Sections 436, 437 and 439 of the Code are

intended to release persons on bail and restore their liberty. They

have to be viewed from the bedrock of Article 21 of the

Constitution of India as they are very much concerned with

securing the liberty of the individual. Section 330 of the Code is

also concerned with the personal liberty of the individual, but it

is not as wide as Section 439 of the Code.

7. Mr. Desai contends that there is an abiding legislative

concern to secure to an accused of unsound mind all that would

truly ensure a meaningful liberty to him. Such concern led to

promulgation of the Mental Healthcare Care Act of 2017 with an

object to provide for mental health care and services for persons

with mental illness. He relies upon the provisions of Sections 3,

19 and 20 of the said Act and submits that a person suffering

from mental illness have a right to live in, be part of and not be

segregated from society and such ailing patient also have a right

to live with dignity. Such atmosphere is not provided in the jail

and in such facts and circumstances he may be enlarged on

medical bail on any stringent condition.

8. Mr. Mukherjee, learned Public Prosecutor appearing for

the State submits that the petitioner has filed repeated

applications with the sole intent to stall the proceedings. The

sequence of facts would reveal that the bail prayer of the accused

was refused on 13th April, 2021 after he substantially recovered

from his ailments. In course of hearing of the application under

Section 329 of the Code before the learned Court below, it was

admitted on behalf of the accused that he had recovered well

after getting treatment from NIMHNS. Thereafter the mental

health condition of the petitioner has not deteriorated. The

authorities have constantly monitored his health conditions and

whenever required, he had been shifted to one of the best

institutes in the State for treatment and the last discharge

certificate dated 12th February, 2022 would also reveal that his

condition has substantially improved.

9. According to Mr. Mukherjee, on one hand, the accused

claims himself to be mentally unfit and seeks relief under the

provisions of Chapter XXV of the Code and on the other hand

files the present application seeking bail on medical ground. In

the said rigmarole the proceedings had been delayed and till date

charges could not be framed. Had the accused allowed the

proceeding to continue, the same would have substantially

progressed by now. Such conduct of the accused reveals that his

intent is to stall the proceedings.

10. He further submits that the petitioner's earlier

application under Section 330 read with Section 439 of the Code

was rejected by a co-ordinate Bench of this Court on 13th April,

2021 upon arriving at a finding that provisions of Section 330 of

the Code are not attracted. The said order has been upheld by

the Hon'ble Supreme Court on 19th April, 2021.

11. In reply, Mr. Desai submits that there had been no

intent on the part of the accused to delay the proceedings. The

health condition of the accused is deteriorating day by day and

as such his prayer may be considered sympathetically.

12. There is no dispute as regards the proposition of law

laid down in the judgments upon which reliance has been placed

on behalf of the petitioner. However, a decision is an authority for

what it decides and not what can logically, be deduced therefrom.

Even a slight difference in fact or addition of fact may make a lot

of difference in the decision making process. The grant or

rejection of bail will almost always be based upon the given sets

of facts and situations. In the case of Sashidharan (supra), the

petitioner was about sixty years of age, in Varvara Rao (supra),

the accused was about eighty two years old. The accused here is

26 years old. In Virendra (supra), the accused was suffering from

schizophrenia with current episode mania and in Deepak

Surendran (supra), accused was having maniacal and psychotic

symptoms. The accused herein was examined by the Medical

Board and upon considering all parameters the expert body had

observed that the accused is stable and no neurological and

neurosurgical intervention is needed.

13. On 23rd February, 2021, the Medical Board of NIMHNS

observed that the accused is maintaining improvement and is fit

to face the trial procedures. Considering the said report, the

prayer of the accused for bail was earlier rejected by a coordinate

bench of this Court on 13th April, 2021. The Special Leave

Petition filed by the petitioner challenging the said order was

rejected on 19th April, 2021. The accused was thereafter shifted

to the Institute of Psychiatry and his health status was under

constant monitoring. The Medical Board in its report dated 3rd

December, 2021, observed that the petitioner is alert, conscious

and cooperative. In the reports dated 20th December, 2021 and

25th January, 2022 it has inter alia been stated that the accused

is maintaining well on medication and that no neurological and

neurosurgical intervention is necessary. The accused was

discharged thereafter, on 3rd February, 2022. In the discharge

certificate it was inter alia observed that his 'target symptoms

decreased gradually" and his condition on discharge was stated

to be 'Stable. No delusions or hallucinations present. Mood is

euthymic. Biological functions - normal'. Prima facie, it is thus not

acceptable that the health status of the accused had deteriorated.

He had been kept under constant monitoring by doctors and

whenever required, he had undergone treatment in one of the

best institutes of Psychiatry in the State. The State had

discharged its duty by providing specialised medical treatment to

the accused in one of the best institutes in the State and has

been bearing the necessary expenditure.

14. Having given a thoughtful consideration to the

arguments advanced and as the ailment of the accused has not

aggravated and as he has been kept under constant monitoring

by the authorities, we are not inclined to grant him bail, as

prayed for, at this stage.

     15.   The   application     being,   CRM    7021   of   2021    is,

accordingly, dismissed.

16. The case diary be returned to Mr. Mukherjee, the

learned Public Prosecutor appearing for the State.

17. Urgent photostat certified copy of this order, if applied

for, be supplied to the parties, upon compliance of all requisite

formalities.

(Sugato Majumdar, J.) (Tapabrata Chakraborty, J.)