G.S. Dhillon vs State (Nct Of Delhi)
2002 Latest Caselaw 807 Del

JUDGMENT

S.K. Agarwal, J.

1. This order will dispose of applications under Section 439 Cr.P.C. and Section 330 Cr.P.C. read with Section 482 Cr.P.C. for bail in the case FIR No. 129/97 under Sections 3, 5, 9, of OS Act P.S. Chanakayapuri.

2. Facts in brief are that on 27th April, 1997 petitioner Gurdev Singh Dhillon, then working as Travel Agent was apprehended, while he was going to the family quarters of Pakistan High Commissioner, New Delhi. Four documents containing sensitive and secret information relating to the defense matters of the country were recovered from him: He was arrested in the above noted case. After investigations, challan was filed and the matter is pending trial. By order dated 28th August, 2000, he was granted interim bail for five months on the ground of his ill health; the interim bail was to expire on 26th January, 2001 and he moved another application on 17th January, 2001. The interim bail was extended for another period of six months again on the ground of sickness. Petitioner moved yet another petition (Crl.M.(M)No. 223/2001) for extension of interim bail which was dismissed by detailed order dated 27th July, 2001. Petitioner was directed to surrender on 28.7.2001 and the Superintendent, Central Jail, Thihar was directed to provide medical treatment to the petitioner, if necessary, at All India Institute of Medical Sciences. He did not surrender and filed Special Leave Petition before the Supreme Court which was also dismissed on 19th November, 2001. It was observed:

"This special leave petition is disposed of with the order that if the petitioner files an application for regular bail in the case before the trial court, the same will be disposed of expeditiously preferably within a week. The SLP is disposed of accordingly.'

3. Thereafter, petitioner moved an application for regular bail without surrendering before the trial court and the same was declined vide order dated 1st December, 2001. Petitioner again did not surrender and filed Crl.M.(M) No. 4514/2001 seeking directions to the trial court that he be permitted to appear through lawyer as he was a sick and infirm person. By order dated 20th December, 2001, petitioner was directed to surrender before he can be heard on merits. Ultimately, on 24.1.2002, petitioner surrendered. Learned counsel for the petitioner submits that since the petitioner has surrendered, Crl.M.(M). No.4514/2001 be dismissed as infructuous. Ordered accordingly. Thereafter he moved the application (Crl.M.No. 5672/2001) under Sections 439/482 Cr.P.C. for regular bail.

4. I have heard the learned counsel for the petitioner and learned APP for the State and have been taken through the record.

5. Learned counsel for the petitioner argued that the petitioner was arrested on 28th April, 1997 and he remained in custody till 28th August, 2000 when he was granted interim bail twice and that he surrendered on 24th January, 2002. Thus, he has remained in custody for three years and eight months. Trial against the petitioner was separated because of his illness. However, co-accused persons against whom trial continued were held guilty and sentenced to undergo R.I. for 6 years by judgment and order dated 26th March, 2002. he further argued that the petitioner has undergone substantial sentence; he is a sick and infirm person; he is ready and willing to abide by any condition, therefore, he may be granted regular bail. Learned APP for the State argued to the contrary. Since, bail was sought on medical grounds, Superintendent, Central Jail was directed to send the medical report of the petitioner. As per the medical report dated 7th March, 2002 petitioner was being treated under the supervision of Psychiatrists at AIIMS; he has shown improvement with regard to his illness; his blood pressure and blood sugar were found under control. The relevant portion of the medical report is as under:

"His last review in A.I.I.M.S. done on 11.02.2002 in the department of Neurology, 15.02.2002 in the Dept. of Medicine and 28.02.2002 in the Dept. of Psychiatry as per advised of the A.I.I.M.S.

Presently is conscious, oriented ambulatory and admitted in the Psychiatric ward as per advised of the Psychiatrist A.I.I.M.S. for supervised medication and his blood pressure and blood sugar is under control and no seizure has developed during past five weeks. Regarding his Psychiatric illness he has shown improvement in his condition but mild depression features are still present."

6. The medical report dated 4th May, 2002 also shows that condition of the petitioner is satisfactory and ambulatory and he is getting adequate medical treatment.

7. The trial against the petitioner was stayed. The order dated 25th May, 2000, reads as under:

"In view of the report it is apparent that at present the accused is suffering from mental illness and is consequently incapable of making his defense and from the report I am intistled in this regard and as such, the further proceedings in the case are postponed till the date accused Gurdev Singh recovers from his mental illness and become capable to make his defense.

Since the charges are grave and serious and I do not find fit to release the accused on bail and intend to proceed under Section 330(2) of the Cr.P.C. and direct the Jail authorities to keep the accused in safe custody in some government hospital and get him treated for psychiatric illness at the relevant centres of the government Hospital and from time to time opinion of AIIMS authority who will evirate condition of the accused and produce him in the court and when accused Gurdev Singh ceases to be of unsound mind so that the trial can be resumed. I also want to make it clear that accused Gurdev Singh Should be kept at a place which is conductor for his recovery. Probably in Govt. Hospital."

8. Now coming back to the question of bail, as noticed above, petitioner enjoyed interim bail for about one year, i.e., 28.8.2000 to 27.7.2001, when further extension was refused; he did not surrender and made excuses which were found untenable; he continued to abscond for six months and surrendered only on 24th January, 2002.

9. As noticed above, the trial court postponed the proceedings again but declined to release him on bail in view of the nature of allegations against him. The medical report now prima facie reveals that petitioner has recovered from his illness. Section 328 of the Code of Criminal Procedure, lays down the procedure in case the accused in a lunatic. The provisions of the section are mandatory and ought to be strictly complied with. The expression "reasons to believe" means a belief that a reasonable person will entertain on the facts before him. The Court is required to record a finding that the accused appears to be of unsound mind. The enquiry should not be limited to the report received from the surgeon or the Medical Officer. The prosecution should also be allowed an opportunity to rebut the evidence, if necessary. Only when the accused is found to be of unsound mind and incapable of making a defense, the Court should postpone further proceedings. In this case, the Court appears to have acted only on the basis of the report that the accused was suffering from mental illness, which is not permissible in law. Evidence of the doctor should have been recorded.

10. Looking into the nature of allegations, the gravity of the offence and the conduct of the petitioner, in my considered view, no case for grant of bail is made out and the same is dismissed. Trial Court is directed to get the petitioner examined, if necessary, he may be got examined by the doctors of two different hospitals and record a finding regarding his illness. Unless the Court comes to conclusion that the accused is of unsound mind and is incapable of making his defense, the Court shall proceed with the trial in accordance with law. With these observations, petitioner stands disposed of.

11. Copy of the order be given dusty to both the parties.