Nirmal Kumar Dhiman vs State of Punjab

B. Rai, J.

This petition under Section 482 Cr.P.C. has been filed seeking a direction for checkup of the accused by the Medical Board as the accused had been favourably treated and recommended by the Medical Officer beyond his competence so as to help him in securing the bail in the murder case bearing FIR No. 4 dated 4.1.1998 under Section 302 read with Section 34 I.P.C. registered in Police Station Kurali District Ropar with a further prayer for staying proceedings on the bail application before the District and Sessions Judge, Ropar, which was fixed for 24.3.1998.

Brief facts of the case are that elder brother of Nirmal Kumar Dhiman petitioner was murdered. F.I.R. No. 4 dated 4.1.1998, P.S. Kurali was registered. In that F.I.R. Ashok Kumar son of Des Raj Mehra, Khushwant alias Sukhwant Mehra son of Ashok Kumar Mehra were named as accused. During the course of investigation of the case, accused were arrested. On completion of investigation challan under Section 173 Cr.P.C. was submitted.

On 27.2.1998 Ashok Kumar Mehra accused made an application in the Court of Sessions Judge, Ropar for seeking bail under Section 439 Cr.P.C. on the ground that he was suffering from heart disease and was admitted in Rajindra Hospital, Patiala; that there was no adequate arrangement for the treatment of the petitioner. It was pleaded that he wanted to get himself examined from Escorts/Apollo Hospital Delhi. It was also pleaded that if proper medical treatment is not made available the accused may die at any time and that the trial of the case will take sufficient long time and as such it would not be useful to keep the petitioner in custody for all the times; that the petitioner is no longer required by the police for investigation or interrogation and that he will not tamper with the prosecution evidence, if he is released on bail.

During the pendency of the bail application, on 10.3.1998 an application Annexure P2 through counsel was filed with a prayer for taking report regarding illness of the petitioner from the Doctor of the Jail at Patiala before deciding the application.

In response to letter No. 1364 dated 17.3.1098 of the Superintendent, Central Jail, Patiala, the Medical Officer submitted his report to the following effect :

"1. He was admitted in the jail hospital on 31.1.1998 vide indoor No. 25/98 as an old case of diabetes mellitus (NIDDM) with Ischaemic Heart Disease (IHD).

On 9.2.1998, he developed acute pain in Chest and S/s of Hyperglycaemia. So, he was referred to Emergency Department Rajindra Hospital, Patiala where he was admitted to Medicine Unit Ist. Vide or No. 3992 dated 9.2.1998 he was diagnosed as a case of NIDDMc. IHDc. syncope. He remained admitted there till 12.2.1998. He was investigated and was advised treatment.

Now he is admitted in jail hospital vide Indoor No. 34/98 w.e.f. 13.3.1998 till date. On 8.3.1998, he again manifested s/s of IHD for which he is being treated.

Since he is a case of IHD c. NIDDM so he needs a specialised treatment by cardiologist Endocrinologist, the facilities for which are not available in the Jail Hospital. That medical report is Annexure P3."

In view of the medical report Ashok Kumar Mehra accused was ordered to be released on bail on his furnishing personal bond in the sum of Rs. 30,000/ with one surety in the like amount to the satisfaction of the Court of Session vide order dated 24.3.1998.

Nirmal Kumar Dhiman petitioner was not satisfied with the way in which the accused had secured bail. He approached this Court with the present petition.

The case of the petitioner is that application for bail was made on 17.2.1998; that the said application was filed in active connivance with the Medical Officer of the Jail for his recommendation to the Escorts/Apollo Hospital at Delhi only to facilitate the release of the accused. On 10.3.1998, counsel for the accused made another application Annexure P1 with a prayer to call for report from the Doctor of the Jail. Application Annexure P2 was also made with an understanding between the accused and the Medical Officer of the Jail. The Medical Officer of the jail is a Doctor on the general side and as such he was not even competent to give opinion with regard to the heart treatment. It is further alleged that the accused has no past history of any heart disease. The Doctor has given his opinion only to facilitate the bail to the accused. It is also alleged that even during the period the accused was in custody, he was referred to the Hospital on 9.2.1998 and was discharged on 12.2.1998. According to the petitioner, the manner in which the said certificate has been procured clearly shows that the accused is very influential and is making an attempt to interfere in the judicial proceedings after committing brutal murder. The certificate has been issued by the Medical Officer with active connivance of the accused for the reasons best known to him and to impress upon the Court for his bail. Case of the petitioner further is that once the challan has been presented and evidence of the prosecution is yet to be recorded, the attempt of the accused to seek bail in the manner is totally uncalled for. The petitioner apprehends that such an attempt is against the principles of law. Therefore, the petitioner through his counsel requested the Court that before hearing the case, the accused be produced before the Medical Board for determining his ailment so that the medical certificate issued by the Jail Doctor should have no bearing on the decision of the bail application but that process was not adopted. Therefore, the petitioner made a prayer to call for the complete medical record to pass strictures as to the manner such certificates are being granted to the accused of such heinous crime and to check the misuse and abuse of the process of Court.

On 24.3.1998 notice of the petition was issued to Advocate General Punjab for 3.4.1998. Reply on behalf of the State was filed on 15.4.1998. On 15.4.1998, the following order was passed :

"Reply on behalf of the State has been filed. Copy supplied to the counsel for the petitionercomplainant. Ashok Kumar Mehra, hereinafter to be called as accused, was ordered to be released on bail by the learned Sessions Judge, Rupnagar, vide his order dated March 24, 1998, on the ground that the medical authorities of Rajindera Hospital had reported that the accused was case of IHDCNIDDM a heart disease. It has been argued by the learned Counsel for the petitionercomplainant that in fact accused is not suffering from any heart disease and the report is procured one. According to the learned Counsel for the State, the accused has committed a very heinous crime and as such he should not have been granted bail on the procured medical certificate. It has been submitted by the learned Counsel for the petitionercomplainant, that the accused shall be ordered to be medically examined by a Board of at least three doctors. In the facts and circumstances of the case, the submission made has a sufficient persuasive force. It, therefore, appears to be desirable to direct the Head of the Department of Cardiology, Post Graduate Institute of Medical Education and Research, Chandigarh, to constitute a Board of three doctors headed by himself, for the medical examination of Ashok Kumar Mehra, accused. SI Balbir Singh, the investigating officer of this case, who is present in the Court, is directed to serve a copy of this order on the accused concerned and to direct him to appear before th Head of the Department of Cardiology, PGI, Chandigarh, within a period of one week from today, for his medical examination. In case the investigating officer is satisfied that despite direction the accused would not appear before the Board of Doctors for his medical examination, the Investigating Officer shall be at liberty to take him in custody and produce him before head of the department of Cardiology, who in turn would fix the date for the medical examination of the accused. After the date is fixed for medical examination, the accused shall be set at liberty. If the Investigating Officer has reasons to believe that on the date so fixed the accused shall not put in appearance before the Medical Board, the Investigating Officer shall be at liberty to take the accused in custody and produce him before the medical board. After the medical examination of the accused is over, the accused shall be set at liberty.

After the medical examination of the accused, the Head of the Department of Cardiology, PGI, Chandigarh, shall submit the report in a sealed envelope to this Court on or before May 27, 1998 without delay.

A copy of this order attested by the Court Secretary be given dasti to the investigating officer today itself and another copy be sent to the Head of the Department of Cardiology, PGI, Chandigarh, for information and necessary action.

Before adverting to the petition at hand, it is apposite to take note of the fact that when brother H.S. Bedi, J. was on inspection visit of the Sessions Division at Ropar, he passed the following order on 7.4.1998 :

"This matter has been presented before me today at Ropar during the course of my inspection visit to the Sessions Division which pertains to the grant of bail to Ashok Kumar Mehra, a coaccused, in F.I.R. No. 2 dated 4.1.1998, Police Station Kurali, under section 302/34 of the Indian Penal Code.

Ashok Kumar Mehra, who is the main accused in the case, has been granted bail on medical grounds. In the application dated 24.3.1998, it has been noticed that Criminal Misc. Application No. 6997M of 1998 dated 21.3.1998 had been filed in the High Court praying that before the bail matter was decided, the accused be got checked up by a Medical Board as bail was being sought on the basis of a medical certificate issued by the Medical Officer, Central Jail, Patiala. It has also been noticed in the application that the Criminal Misc. Application had been fixed for that very date, but notwithstanding this fact, the Sessions Judge, Ropar, has granted bail to Ashok Kumar Mehra on 24.3.1998. I am, therefore, of the opinion that this matter requires to be looked into.

Notice regarding cancellation of bail be issued to Ashok Kumar Mehra for 27.4.1998.

The matter be put up before Hon''ble the Chief Justice for appropriate orders along with Criminal Misc. Application No. 6997M of 1998 which is also pending in the High Court."

On receipt of the aforesaid note, on 24.4.1998, Hon''ble the Chief Justice, passed the following order :

"List the case along with file of Cr. M. No. 6997M/1998, on the judicial side, as per roster."

In compliance with the aforesaid order of Hon''ble the Chief Justice, the case came up for hearing on 27.4.1998. On the said date, the following order was passed :

"Present : None.

The registry is directed to contact the Chief Judicial Magistrate, Ropar, on telephone and obtain the report regarding service of notice on Ashok Kumar Mehra accused in case F.I.R. No. 2 dated 4.1.1998 under Section 302 read with section 34 of the Indian Penal Code, registered in Police Station Kurali, today itself.

Adjourned to 29.04.1998."

On 29.4.1998, the following order was passed :

"None.

As per the report, no notice was issued to Ashok Kumar Mehra, accused. Fresh notice be issued to him for 12.05.1998."

On 12.5.1998, Mr. G.V. Dogra, Advocate put in appearance on behalf of the respondent (accused) and on his request the case was adjourned to 27.5.1998. In compliance with the order dated 15.4.1998, the Head of the Department of Cardiology, PGI, Chandigarh, was to send the report to this Court but it appears that inadvertently, it was sent to the District and Sessions Judge, Rupnagar (Ropar) through confidential registered A.D. Ultimately, it was sent to this Court. The Head of the Department of Cardiology, PGI, Chandigarh constituted the board consisting of Dr. S. Verma, Additional Professor of Internal Medicine, Dr. D. Mehra, Joint Medical Superintendent, Dr. J.S. Verma, HOD, Cardiology and Dr. Puneet K. Verma, Assistant Professor of Cardiology.

The accused was examined by the said Medical Board and the Board decided to get him admitted for clinical evaluation and investigations. He was admitted in the C.T.U. Ward on 23.4.1998 and was discharged on 1.5.1998. During his stay in the hospital the patient was subjected to investigation as per his discharge summary (enclosed). The Medical Board after investigation formed the opinion as follows :

"The patient was diagnosed to have Essential hypertension with echocardiographic evidence of left ventricular hypertrophy and noninsulin dependent diabetes mellitus (NIDDM). As per his Coronary Angiography report (401/98), he has no evidence of coronary artery disease/ischemic heart disease. He has been advised regular followup in the Cardiology O.P.D. for control of hypertension and Endocrinology clinic for control of diabetes mellitus."

In the face of the report of the Medical Board, it appears that the medical certificate Annexure P3 was procured by Ashok Kumar Mehra accused from Medical Officer Central Jail, Patiala, in order to secure bail in a case of heinous crime and he succeeded in his attempt by getting bail vide order dated 24.3.1998. In the petition, there is no prayer for cancellation of bail. However, in pursuance of the notice regarding cancellation of bail issued vide order dated 7.4.1998, in Crl. M. No. 9844M of 1998, the bail granted to Ashok Kumar Mehra vide order 24.3.1998 by Sessions Judge, Rupnagar (Ropar) is hereby cancelled. Accordingly, the personal bond and the surety bond stand discharged.

A.S.I. Balbir Singh of Police Station Kurali, present in Court was directed to take the accused in custody and commit him to Jail. Crl. M. No. 697M of 1998 and Crl. Misc. 9844M of 1998 are allowed.

Before parting with the order, it appears necessary to observe that the order dated 24.3.1998 whereby Ashok Kumar Mehra was granted bail by the Sessions Judge Rupnagar was passed in hurry and haste which provided cause to the complainant to make the grievance. Once, during the course of hearing of the bail application, it was brought to the notice of the Court on behalf of the complainant that matter connected with the case of the accused was before the High Court, the Sessions Judge should have refrained from passing the order granting bail to the accused. Had he adopted that course, there could be no case with the complainant to make any grievance. It is cardinal principle of Administration of Justice that justice is not only to be done but it must also appear to have been done but while passing the order dated 24.3.1998 that principle was not kept in mind. It is result of his ignominy. The grievance of the complainant is that Sessions Judge is friendly with the counsel for the accused but there is no prima facie proof to support that allegation. It is not the grievance of the complainant that the said order was passed for some extraneous considerations. Therefore, it would be going too far to say that some action on the administrative side is required to be taken. I am of the view that it would serve the purpose if the Sessions Judge concerned is cautioned to be careful in future.