Azad Hussain Malik vs The State And Anr.
2008 Latest Caselaw 122 Del

ORDER

S. Muralidhar, J.

1. This is a petition filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure 1973 (CrPC) seeking cancellation of the bail granted to Respondent No. 2 Dr. Chander Prakash by an order dated 25th July, 2001 passed by the learned Additional Sessions Judge, Delhi (ASJ) in the case arising out of FIR No. 311 of 2001 under Section 304 IPC registered at Police Station Ashok Vihar.

2. It is stated that on 16th May 2001 the Petitioners brother met with an accident at Azadpur and was taken for treatment to the Sundar Lal Jain Charitable Hospital, Ashok Vihar. It is stated that although the Petitioner was prepared to deposit Rs. 6,500/-, the hospital authorities were reluctant to admit the victim unless Rs. 25,000/- was initially deposited. On account of the refusal by the said hospital authorities to admit the Petitioners brother, and to even provide him an ambulance to take him to some other hospital, the Petitioner was compelled to take his injured brother to Shusrut Trauma Centre in his car and on reaching the said centre, the doctors declared the Petitioners brother as brought dead.

3. Aggrieved by the death of his brother, which according to the Petitioner could have been avoided if only he had been given prompt treatment at the Sundar Lal Jain Charitable Hospital, a complaint was lodged by him with the police. An FIR was thereafter registered under Section 304 IPC against Respondent No. 2 Dr. Chander Prakash. It is stated that in the course of investigation it was revealed that the accused had tampered with the medical record as the entry regarding blood pressure was in the duplicate of the treatment card whereas it did not figure in the original.

4. Dr. Chander Prakash was arrested on 13th July 2001 and remanded to judicial custody till 27th July 2001. His bail application was rejected by the learned Metropolitan Magistrate (MM). Later he was admitted to the LNJP Hospital after he complained of a heart problem.

5. The bail application of Dr. Chander Prakash was heard by the learned ASJ on 16th July 2001 and adjourned to 18th July 2001 to await the status report of the health of the accused. At the hearing on 18th July 2001 the State was represented by its Public Prosecutor Shri G.N. Mehra assisted by the Assistant Public Prosecutor (APP) Shri H.D.Berwal. Arguments were deferred to 25th July 2001.

6. On 25th July 2001 the State was represented by the Additional Public Prosecutor Shri H.D.Berwal pursuant to an order passed by the Director of Prosecution on 24th July 2001 assigning him the case. Thereafter on 25th July 2001 the learned ASJ passed the following impugned order granting bail to the accused:

Heard. I.O. admits that few patient, were admitted and treated in the hospital who initially were not able to pay enough money. Ld. Counsel for the accused has relied upon 1999 SCC (Cri) 76 and has prayed for bail to the accused. According to him no offence punishable under Section 304 IPC or even under Section 304A IPC has been committed by the accused. Ld. APP has also frankly not opposed the grant of bail to the accused. He says that the Investigating Agency has not so far been able to gather any direct evidence connecting the accused with the commission of offence punishable under Section 304 IPC and even this point is under examination, if at all any offence has been committed by the applicant-accused. He further conceded that the accused is not required for any investigating purpose by the Investigating Agency. Moreover, he is not a criminal and there is no likelihood of the accused fleeing from justice or absconding as he is a respectable Doctor and if he is released on bail, the prosecution has not objection for the same.

Keeping in view all the facts and circumstances of the case I admit accused Dr. Chander Prakash to bail in his executing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned M.M.

7. The present petition was filed on 31st July 2001 by the Petitioner seeking cancellation of the bail. On 1st August, 2001, while directing notice to issue in the petition this Court did not stay the operation of the impugned order. Thereafter the case kept getting adjourned from time to time. Meanwhile against the order framing charge under Section 304 IPC, Dr. Chander Prakash filed Criminal Revision Petition No. 487 of 2003 in this Court. This Court stayed the further proceedings in the trial court. The said revision petition is stated to be pending.

8. The grounds urged by Mr. Salendra Sharma, learned Advocate for the petitioner in support of the prayer for cancellation of bail are:

(a) The impugned order was passed in extraordinary circumstances where the Public Prosecutor who appeared on the previous date of hearing i.e. 18th July 2001 was strangely removed and replaced by the APP just one day prior to the next date of hearing on 25th July 2001.

(b) Not insignificantly, the APP did not oppose the grant of bail to the accused when the matter was taken up on 25th July 2001. The conduct of the State through its APP was in the circumstances unacceptable and belied the pressure brought to bear on it by the accused.

(c) This was a case involving commission of a grave offence punishable under Section 304 IPC and therefore bail ought not to have been granted merely on the concession of the learned APP for the State.

9. The approach to be adopted by a court when approached with a prayer for cancellation of bail was explained by the Supreme Court in Puran v. Rambilas where it was stated (SCC p.345):

It is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) . In that case the Court observed as under: (SCC p. 124, para 16)

If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.

10. In Puran v. Rambilas the Supreme Court further explained the decision in Gurcharan Singh as holding that "under Section 439(2), the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere." The law as regards the cancellation of bail was also explained by the Supreme Court in Dolat Ram v. State of Haryana as under:

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.

11. Applying the law as explained by the Supreme Court to the facts on hand, this Court is not persuaded to cancel the bail granted to Respondent No. 2 by the learned ASJ by the impugned order for several reasons. In the first place, it requires to be noticed that the Petitioner has been on bail for more than six years and the intervening events till date cannot be lost sight of. In other words it is not possible, as suggested by the counsel for the Petitioner, for this Court to limit its examination of the impugned order keeping in view the situation prevailing on 25th July 2001 when the bail order was passed in order to determine whether the bail requires to be now cancelled in 2008. That is not even consistent with the law as explained by the Supreme Court in the above decisions which requires the court to consider the events that have transpired subsequent to the grant of bail.

12. During the period of nearly seven years since the impugned bail order was passed, the challan was filed on 5th June 2002 and the order framing charge was passed by the trial court on 19th May 2003. It is not the case of the petitioner or even the prosecution that during this period the accused has violated any of the terms and conditions of the bail order or done anything to hinder the fair progress of the trial. In other words the case of either the petitioner or the prosecution is not, to apply the illustration in Dolat Ram, that the Respondent No. 2 interfered or attempted to interfere with the due course of administration of justice or evaded or attempted to evade the due course of justice or abuse of the concession granted to him in any manner.

13. It is also not the case of the petitioner or the prosecution that while being on bail, Dr. Chander Prakash sought to influence the fair course of investigation in a manner that the prosecution filed a charge sheet for a lesser offence than what it should have. In fact the order framing charge was for an offence under Section 304 IPC which is what the prosecution sought in the first instance. The allegation that prior to the filing of the charge sheet it was found that Respondent No. 2 had tampered with the medical record cannot be a factor relevant to his conduct during the period after the grant of bail. In other words, during the time he has been on bail, Respondent No. 2 does not appear to have interfered with the fair progress of the investigation. The trial of course, as already noticed, has been stayed by an interim order passed by this Court in the revision petition filed by Dr. Chander Prakash challenging the order framing charge.

14. This Courts attention was drawn by the counsel for the petitioner to the order of a learned Single Judge of this Court in Balbir Kumar Datta v. The State (2001) 1 JCC (Delhi) 205 in support of the contention that where bail was granted on a concession by the APP, this Court cancelled it. It requires to be noticed that the aforesaid decision was in a case of dowry death. Secondly, the bail was granted on 6th August 1999 and this Court cancelled the bail on 5th December 2000 not long thereafter. The said case is therefore clearly distinguishable on facts. It cannot be applied ipso facto to the present case where the question concerning cancellation is being considered nearly seven years after the grant of bail.

15. While the Petitioner may have a legitimate grievance about the sudden change of the assignment of the APP and the concession made soon thereafter before the trial court, in the ultimate analysis what is required to be seen is whether the conditions for the exercise of the power under Section 482 read with Section 439(2) CrPC for cancellation of bail exist as explained in the decisions of the Supreme Court referred to earlier. In the considered view of this Court the answer to that question has to be in the negative as far as the present case is concerned. In other words, this Court is of the view that no case has been made out by the Petitioner for cancellation of the bail granted to the Respondent No. 2 Dr. Chander Prakash by the learned ASJ by the impugned order.

16. For the aforesaid reasons, there is no merit in this petition and it is dismissed as such.