TMI Blog2005 (3) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... d Sub-Divisional Judicial Magistrate, Bidhannagar on 21.1.2005 in connection with G. R. Case No. 530 of 2005 arising out of Lake Town Police Station Case No. 320 dated 20.12.2004 under Sections 417, 420, 354, 498A, 406 and 120B of the Indian Penal Code + Sections 3 and 4 the Dowry Prohibition Act. 2 . Learned Senior Counsel appearing on behalf of the petitioner submitted that the interim bail granted by the learned Magistrate was passed on a holiday remand on the ground that the health condition of the opposite party No. 1 was not good; but, however, without looking into any medical documents the said order was passed. He further submitted that how could the learned Magistrate determine in the absence of any medical certificate as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. He submitted that the materials against the opposite party No. 1 did not justify detention. As such he was rightly enlarged on bail; more so when the Investigating Agency did not ask for police remand for this opposite party No. 1 although there was prayer for remand in respect of another accused (Bikash Khemka). Learned Senior Counsel for the opposite party No. 1 submitted that the cancellation was prayed not on merit but on the ground of legal sanctity and it would be an extreme step for the Court to exercise its powers for cancellation after the learned Magistrate has formed an opinion and enlarged said opposite party No. 1 on bail. 5 . Learned Senior Counsel for the opposite party No. 1 submitted that it was never a perverse order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opposite party No. 1 was under treatment in a hospital and pointed out to the materials as collected by the Investigating Agency; but, leaves the entire matter to the Court. 9 . Affidavit-in-opposition filed on behalf of the opposite party No. 1 contains a list of medical treatment undergone by him. It further controverted all the allegations made against him by the petitioner. 10. Reply was filed in respect of the said affidavit by the petitioner herself denying the gravity of the health condition of the opposite party No. 1 and she also disputed the ailment of the opposite party No. 2. 11. Acting on the basis of the application for cancellation filed by the petitioner this Court stayed the order dated 21.1.2005 and fixed the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Magistrate, was granted interim bail for the period of two months on Considering the age and also the health condition as submitted by the learned Counsel,... and on the undertaking medical certificate with regard to the ailment of the opposite party No. 1 will be produced on the next date. In default of which the interim bail would be cancelled. 15. Grant or refusal of bail is the absolutely discretion of the Court. When the learned Magistrate considered the 'age' and health condition and enlarged the opposite party No. 1 on interim bail it had exercised its discretion. Although this Court feels such discretion was not exercised in a perfect manner. It was incumbent on the learned Magistrate to have perused the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Magistrate in granting bail can stand vitiated in the absence of production of the same and what would have been the position had the papers been produced. 19. From the affidavit relied upon by the opposite party No. 1, which of course, has been controverted in her reply by the petitioner, this Court finds that the opposite party No. 1 was under sustained treatment. The list of treatment of the opposite party No. 1 shows he was under treatment of Prof. S. Kalyanaraman, Head of the Department of Neuro-Surgery, Senior Consultant-Neuro Surgeon, Apollo Hospital, Chennai and has been undergoing sustained treatment and after he was brought to Calcutta by virtue of Transit Remand the discharge certificate issued by Shree Vishudhanand Hospi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of interim bail passed in this case in respect of the present opposite party No. 2 cannot be faulted with as this Court for abundant precaution has considered the question from altogether different angle as if this Court was considering the prayer for interim bail in such a situation and it feels that no different conclusion could be arrived at except one that has been arrived at by the learned Magistrate. 22. That apart, after an order of bail is granted even on the basis of an exercise of discretion which may not be sound but that by itself will not form the basis of consideration of cancelling the same. While considerations for granting bail is one thing cancellation it is of a complete different consideration. Learned Senior Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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