RAJENDRA KISHORE KANUNGO Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner is the father-in-law of deceased Monalisa who had married the son of the petitioner in the year 1994. FIR has been lodged on 30-10-1998 by the father of the deceased alleging commission of offences under Sees. 4gB-A, 304-B and 306, read with Section 34. Indian Penal Code, wherein the present petitioner, his wife and son have been arraigned as the accused persons. Investigation in the said case is still continuing. The petitioner and his wife had earlier filed Criminal Misc. Case No.4 72 1/98 under Sec. 438, Code of Criminal Procedure (in short, the Cr. P.C.) in the High Court. The said petition was withdrawn by order dated 10-11-1998. Subsequently, the present petitioner and his wife filed another application under Sec. 438, Cr. P.C. in the High Court which was numbered as Criminal Misc. Case No. 5106 of 1998. In the said application under Sec. 438. Cr. P.C. interim protection was given to the accused persons from time to time and ultimately, the High Court by judgment dated 18-12-1998, while extending the period of interim protection for a further period of two weeks, declined to grant anticipatory bail but permitted the accused persons to move the appropriate Court (that is to say, the Court of the S.D.J.M.) for bail. It was further observed that in case the bail is rejected, the accused persons may move the higher Court. The decision is reported in Rajendra Kishore Kanungo and another v. State of Orissa. Thereafter, the present petitioner and his wife appeared before the S.D.J.M. and filed application under Sec. 437. Cr. P.C. which having been rejected by the S.D.J.M. an application under Sec. 439, Cr. P.C. was filed before the Sessions Judge. The Additional Sessions Judge who dealt with the matter rejected the petition for bail by order dated 26-12-1998. However, since the petitioner and his wife were still under the umbrella of the interim protection granted by the High Court, the accused petitioners were not remanded to jail custody, but continued to remain under the protection of interim bail. Before expiry of the said period, the petitioner and his wife filed further application in the High Court, this time under Sec. 439. Cr. P.C., which was numbered as Criminal Misc. Case No. 5749 of 1998. In the said proceeding again the interim protection/bail granted to the petitioner and his wife earlier was extended from time to time. Ultimately, the said bail application under Sec. 439. Cr. P.C. was disposed of by the High Court by judgment dated 16th February 1999. In the said case while granting bail to the wife of the petitioner by applying the provision of Section 437 (1), Proviso, Cr. P.C. the prayer for bail of the present petitioner was rejected and he was directed to surrender before the S.D.J.M. on 17-2-1999.

(2.) The facts and circumstances leading to filing of the present three petitions start thereafter, as would be evident from the following narration of events. On 17-2-1999, the present petitioner instead of surrendering before the S.D.J.M. filed an application forbail under Sec. 437. Cr. P.C. stating therein that he had been hospitalised in the Capital Hospital. Bhubaneswar, and as such was not in a position to surrender physically before the S.D.J M. The petitioner, however, did not file any application in the High Court for extension of the interim protection granted by the High Court, which expired on 17-2-1999. The S.D.J.M. by his order dated 17-2-1999 found that since the accused-petitioner had not surrendered before the S.D.J.M. as per the direction given by the High Court, the application for bail was not maintainable. Strangely, however, the S.D.J.M. did not issue any coercive process for apprehension of the petitioner although there was specific direction by the High Court that the petitioner was to surrender on 17-2-1999 and the interim bail granted by the High Court and furnished before the S.D.J.M. expired on 17-2-1999. On the other hand, the S.D.J.M. posted the matter to 17-3-1999 awaiting final form on the next day i.e. on 18-2-1999, the petitioner came to the Court of the S.D.J.M. being accompanied by a private doctor. The S.D.J.M. noted that the petitioner was brought to Court having saline drip being administered on the left hand. The S.D.J.M. also noted the presence of the doctor who stated that he had accompanied the petitioner from Capital Hospital on the request of the petitioner; as the petitioner was undergoing treatment. A prayer was made on behalf of the petitioner to accept his surrender and to release him on bail or to remand him to jail custody with further direction to the jail authorities to provide adequate treatment inside the jail. It was also prayed that he may be allowed to go in a private vehicle accompanied by the doctor to the jail. The S.D.J.M. refused to accept the surrender on the ground that the petitioner had not complied with the direction of the High Court to surrender by 17th February 1999, and there was no further direction from the High Court to the S.D.J .M. to accept the surrender on any other day. The S.D.J.M. for good measure observed: Thus there is no direction from HonTble High Court to this Court to accept the surrender of accused today. Under this circumstance when the condition of the accused is not conducive for physical surrender for the purpose of custody and as per theT Doctor, present in the Court, his condition is physically bad and unpredictable, this Court cannot accept the surrender, whose life is at a risk. Learned A.P.P. also submitted, that in view of physical unfitness of accused his surrender should not be accepted. Having regard to above fact, this Court is unable to accept the surrender of accused Rajendra Kanungo. Learned defence counsel. Mr. Ray submitted that the surrender of accused may be accepted and he may be allowed to be medically treated inside jail and for that, he would be allowed private vehicle and doctor to accompany the accused to jail. I am unable to accept such contention as law does not permit to allow private interference after a person taken into judicial custody. Furthermore judicial order should not be allowed to interfere in the jail administration by allowing a person to the jail whose condition is not conducive to continue as per expert medical report. Having regard to above fact. I am unable to accept the surrender of the accused Rajendra Kishore Kanungo and for that the bail petition filed is not maintainable. Subsequently, the counsel for the informant filed a petition purporting to be one under Sec. 446

(3.) Criminal Misc. Case No. 1063/99 has been filed under Sec. 482. Cr. P.C. in the High Court on 8-3-1999 for setting aside the order dated 5-3-1999 passed by the Additional Sessions Judge. Bhubaneswar, where under the bail application under Sec. 439. Cr. P.C. was rejected as not maintainable. In the petition under Sec. 482, Cr. P.C. a prayer has also been made to enlarge the petitioner on bail. Subsequently on 10-3-1999. Criminal Revision No. 134/99 was filed under Sec. 401. Cr. P.C. challenging the legality of the order dated 17-2-1999 passed by the S.D.J.M. in G.R. Case No. 3357 of 1998 where under the S.D.J.M. had refused to consider the prayer for bail under Sec. 437. Cr. P.C. on the ground that the petitioner had not surrendered before the S.D.J.M. Subsequently, on 16-3-1999 the petitioner has filed Criminal Revision No. 145/99 under Sec. 401, read with Section 482. Cr. P.C. challenging the legally of the order dated 18-2-1999 passed by the S.D.J.M. Bhubaneswar, where under the S.D.J.M. refused to accept the prayer of the petitioner for surrender.