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1985 Supreme(Cal) 428
High Court Of Calcutta
J. N. Chowdhury, G. C. Chatterji
Aruna GOENKA- Appellant
Versus
RAJESH GOENKA - Respondent
Criminal Misc. Case 2079 Of 1985
Decided On : 12/12/1985
AJAY ROY, B.C.Roy, B.K.BHOSH, C.R.CHAKRAVARTY, DILIP KUMAR DATTA, GOENKA, MAITREYI GHOSH, MONI BHUSAN SARKAR, N.A.CHAUDHARY, P.K.DUTT, RAJESH GOENKA, SANKARDAS BANERJI, SUBANTA BANERJI, SUBHRANSU GANGULY, T.R.CHAUDHARY
An exparte grant of bail without notice to the State cannot be regularized by the subsequent compliance of the order by the accused.
Headnote:
BAIL - CANCELLATION - EXPARTE GRANT - IRREGULARITY - CANCELLATION OF BAIL - SECTION 439(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973
Fact of the Case:
The petitioner, Smt. Aruna Goenka, filed an application under section 439(2) of the Code of Criminal Procedure, 1973, for the cancellation of bail granted to her husband, father-in-law, mother-in-law, and sister-in-law in connection with a case of severe burn injuries inflicted on her. The petitioner alleged that the accused had demanded a dowry of thirty lakhs of rupees and attacked her when her brother failed to bring the money. The accused were arrested and granted bail by the magistrate. The petitioner challenged the grant of bail, arguing that it was done exparte and without notice to the Public Prosecutor.
Finding of the Court:
The court held that the exparte grant of bail by the magistrate was improper and without any urgency. The court found that the magistrate did not consider the materials before him and failed to call for a report from the jail doctor, despite the petitioner's allegations that the accused had become extremely sick at the time of transmission to jail. The court also noted that the medical certificates relied on by the accused did not show any aggravation of his condition that would make it undesirable to commit him to jail custody.
Issues: 1. Whether the exparte grant of bail by the magistrate was proper and justified? 2. Whether the medical certificates relied on by the accused were sufficient to justify his release on bail?
Ratio Decidendi: The court held that the exparte grant of bail was improper and could not be regularized by the subsequent compliance of the order by the accused. The court relied on the decision of a Division Bench of this court in Criminal Miscellaneous Cases No. 2096 and 2098 of 1985, where it was held that an exparte grant of bail without notice to the State cannot be regularized by the subsequent compliance of the order by the accused. The court also held that the medical certificates relied on by the accused did not show any aggravation of his condition that would make it undesirable to commit him to jail custody.
Final Decision: The court allowed the application for cancellation of bail and directed that the accused be arrested forthwith and sent to jail custody for one week. The court further directed that the Investigating Officer of the case be permitted by the Jail Authorities concerned to interrogate the accused while in jail custody, upon prior notice to the Superintendent of the jail concerned. After being in jail custody for one week, the accused was to be produced before the appropriate judicial authority for further orders relating to his detention or release on bail.
( 1 ) THIS is an application under section 439 (2) of the Code of Criminal Procedure, 1973 made by Smt. Aruna Goenka, wife of Sri Rajesh Goenka for cancellation of the bail granted to her husband, father-in-law, mother-in-law and her sister-in-law in connection with Karaya Police Station Case No. 236 dated 19-10-85. The F. I. R. in this case was lodged by the petitioner herself on 19-10-85 at 16-45 hours at the Karaya police station, the alleged incident having occurred according to her between 15. 00 hours and 15. 40 hours on the same date, inside the room of the married couple (i. e. the room of the petitioner! complainant and her husband) at No. 27, Ballygunge Park Road, Calcutta, which is about one kilo metre from the said police station.
( 2 ) IT is the case of the petitioner in the F. I. R. that she has been severely injured by her husband being aided and abetted by the other accused with a hot iron Press, and also by burning with the end of a lit cigerate on her breast and other parts of her body, by her husband on the 19th of October 1985. A certificate granted by doctor D. P. Saha dated the 19th of October 1985 (annexure B to the present petition affirmed on 30th October, 1985) shows that the petitioner was attended by him on the same date and he found multiple burn injuries over both the hands and trunks. The injuries were severe and might endanger the life of the patient. A subsequent detail report dated 24th October, 1985 was granted by the same doctor describing the position of the multiple burn injuries found by him on the petitioner on the 19th October 1985 (annexure B/i to the petition ). In the said report dated 24-i0-85 the doctor had again stated that the injuries were severe and might endanger the life of the patient. He found three burn marks on the upper portion of the right thigh, three marks on the left thigh, three marks on the lower abdomen, three big spots and five small ones on the left breast, three on the right breast, four burn injuries on the right hand and five burn injuries on the left hand. The burn on both the fore arms on both the dorsels and ventral aspects were very extensive forming blister which having burst were discharging serious feuding. Some of them had become infected. There were scratch mark also on her neck. The doctor had also noted in the said detailed report dated 24-10-85 that the patient told him that the incident occurred at 27, Ballygunge Park Road, Calcutta on 19-10-85 in the afternoon and that the injuries were caused by her husband Sri Rajesh Goenka, assisted by her father-in-law, mother-in-law and sister-in-law.
( 3 ) THE petitioner was further examined by Dr. (Mrs.) Bharati Pillari on 21. 10-85 and her report is Annexure HT to the petition, which shows that this doctor found burn injuries on her thighs, abdomen and breasts, and extensive burns on the fore arms on both sides.
( 4 ) ON the said F. I. R. lodged by her the present case under sec. 307/327/324/114 I. P. C. was started against her husband Sri Rajesh Goenka, father-in-law Sri Sawarmal Goenka, mother-in-law Smt. Sushila Goenka and sister-in-law Sm. Kavita Goenka who are the accused opposite parties in this application. It is the case of the petitioner in the said F. I. R. that that although at the time of her marriage, dowry in the shape of cash, jewellery, house hold articles, etc. of the value of about Rupees six lakhs as well as other very large amounts later, on demand, had been given, on 18-10- 85 and 19-10-85 the accused persons demanded for the purpose of some land properties another Rupees thirty lakhs, which they asked her to bring from her brother, and that the attack on her by the accused persons arose from the fact that her brother had not came with the money on 19-10- 85. The petitioners marriage on 6th May 1979 was a negotiated one, one male child having been born on 5th January 1982.
( 5 ) ALL the accused were arrested on 19-18-85 by the Karaya police station an
