Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2009 (6) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (6) TMI 1022 - HC - Indian LawsMaintainability - Applications seeking cancellation of bail granted by the Ld. Magistrate - accused charged for the offence Under Sections 420, 465, 467, 468, 471, r/w. 34 of I.P.C - Original Complainant is u/s 439(2) - HELD THAT:- I am therefore of the firm view that since Sections 437(5) and 439(2) Code of Criminal Procedure cannot be invoked by the Applicants for reasons set out hereinabove, and since there is no other efficacious remedy available to the applicants under the Code, this Court can decide the applications by invoking its inherent jurisdiction Under Section 482 Code of Criminal Procedure, and/or under Article 227 of the Constitution of India. In the present case as set out earlier even the basic inquiry as to the nature of sickness is not made prior to grant of bail, more so when the Bail Application was also silent on this aspect. In the absence of any such material before the Ld. Magistrate, he ought not to have granted bail to the accused u/s 437(1) proviso only on the ground that admittedly the accused is under medical treatment. If such orders are allowed to be passed it would open flood gates for such applications to be made in serious non-bailable cases, only on the pretext of the accused being on medical treatment. In my view the Ld. Magistrate by granting bail to the accused only on the ground of him being under medical treatment at the hospital exhibits a totally casual approach in granting bail to an accused u/s 437(1) proviso which is a discretionary power required to be exercised in a judicial manner and on well settled judicial principles. Also in my view the Ld. Magistrate by not taking into account the relevant circumstances like the nature of sickness, the medical facilities/treatment available at the existing hospital, etc. and by granting bail only on the ground of the Respondent Accused taking medical treatment in hospital amounts to granting of bail u/s 437(1) proviso under irrelevant circumstances. The Ld. Magistrate has not only failed to call for a medical report from the Hospital but has not even prima facie satisfied himself as regard the nature of the sickness, which ought to have been done by him at the threshold. The submissions now made as regard the contents of the discharge report of Lilavati Hospital is admittedly subsequent to the passing of the impugned order and, therefore, is of no assistance to the Respondent Accused as the said discharge report was not even in existence when the impugned order was passed. Before I part with the Order I must record that several submissions were advanced before me by the parties to the Applications touching the merit of the matter. However, since the limited question before me pertains to the correctness or otherwise of the impugned Order, I have thought it fit to keep such submissions out of the purview of the foregoing discussion. The observations made in this Order are for the limited purpose of deciding the Applications for cancellation of bail. It is clarified that notwithstanding this Order the Respondent Accused may apply for regular bail before the appropriate Court. If such Application is made the same shall be decided on its own merits. Thus, the order passed by the Ld. J.M.F.C., granting Bail to the Respondent Accused is perverse, arbitrary, without application of mind and displays incorrect exercise of discretion. Hence I pass the following order - The order of the Ld. J.M.F.C., granting bail to the Respondent Accused is hereby quashed and set aside. Application allowed.
|