1appln-2337-10 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION No. 2337 of 2010 Ahmed Asif Fakih vs. Ms Romin Muktar Farid and Anr Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders. Court’s or Judge’s orders Mr A. P. Mundargi, Sr counsel, with Mr K.S.Patil for the Applicant. Mr A. H.H. Ponda i/by Mr S.D. Khot for Respondent No.1. Mr P.S. Hingorani, A.P.P.,for the State. CORAM:- A.R. JOSHI, J. DATE :- 11TH JUNE, 2010. P.C.:- 1. Heard rival submissions at length on 10-6-2010 and also on today’s date on this application preferred by the applicant-accused for setting aside the order dated 23.4.2010 passed by the Additional Sessions Judge, Thane, in Criminal Misc.Application No.42/2010. By the said order the learned Additional Sessions Judge, Thane, has set aside the earlier order dated 18.3.2010 granting bail on medical ground passed by the Judicial Magistrate, Bhivandi. 2. In order to appreciate the rival submissions and the main point in 2appln-2337-10 controversy as to what is sought by the applicant by filing the present application is - revival of the order of the Judicial Magistrate, Bhiwandi for grant of bail on medical ground as on the position of March, 2010, inasmuch as the applicant is asking for setting aside the order of cancellation of such bail passed by the Additional Sessions Judge, Thane dated 23.4.2010. 3. Admittedly, there were matrimonial disputes between the present applicant- Ahmed Asif Fakih - husband and present respondent No.1. Apparently, in the matter of offences punishable under Sections 498-A, 323, 504, 506 (II) read with section 34 of I.P.C. present applicant along with other co-accused was granted bail on 12.12.2008 by the Judicial Magistrate, F.C. Bhiwandi (hereinafter referred as the “Magistrate”). As such while on bail the incident in question as to the assault on respondent no.1 at the hands of present applicant took place on 11.2.2010. It is significant that a meeting for amicable settlement was called at the office Chamber of one Advocate, Shri Momin – then Advocate representing the applicant. The said meeting was attended by the applicant, so also present respondent No.1 and her Advocate. As per the police statements prima facie, it is a factual position that the applicant was armed with country made pistol and in the said meeting, convened for amicable settlement, he tried to shot his wife – respondent No.1, however, gun did not work, and therefore,the applicant went out and returned, armed with weapon like sword of the length of about 1.5 feet or so, and assaulted on the fore- head, hands and other parts of the body of respondent No.1 causing severe 3appln-2337-10 fracture of skull bone just above the eye lid and also cutting the tendons of right hand, thus rendering respondent No.1 incapacitated for moving her fingers. 4. After such incident, the applicant ran away from the office Chamber of his Advocate Momin and allegedly took away vehicle brought by respondent No.1. He was subsequently arrested on 7.3.2010 and was remanded to police custody. On 18.3.2010 he preferred an application on medical ground of undergoing treatment for cancer of rectum. Along with the said application certain documents were produced. This Court has gone through the said documents which are on the letter head of one Dr Fakih concerning the history as to the ailment of cancer and present position as to the applicant not visiting said doctor for the last ten months prior to March, 2010. Another document is regarding medical report from Bhiwandi Scan Diagnostic Centre, dated 10-3-2010. Suffice it to say that after carefully going through the contents of the said two page report that though there was CT scan performed on the applicant for cancer of rectum as on March, 2010 he had no such ailment and practically he had recovered. In fact, apart from certain finding as to tiny left renal calculus found in the kidney, all other organs including intestine, and rectum were not showing any malignancy, much less any requirement or plan of treatment for getting radiological treatment. 4. It appears that believing the submissions on behalf of the applicant as to he was suffering from cancer as on March, 2010, J.M.F.C.,Bhiwandi allowed the application for bail. As mentioned above, the said order was challenged before the 4appln-2337-10 learned Additional Sessions Judge, Thane who by an order dated 23.4.2010 cancelled the order of bail granted by the Magistrate Bhiwandi. 5. During the arguments, learned Senior Counsel Shri Mundargi vehemently argued mainly submitting that when the matter was dealt with by the Magistrate, Bhiwandi under the provisions of Section 437 of Cr.P.C.,for granting bail on the medical ground, the merits of the matter cannot be looked into. Secondly, it is submitted that there was sufficient material before the Magistrate to come to the conclusion that the accused was suffering from cancer, and accordingly discretionary order passed by Magistrate,Bhiwandi could not have been interfered with by the learned Additional Sessions Judge, Thane. 6. Counter to this argument, it is submitted on behalf of Respondent No.1 by learned counsel Shri Ponda, by taking shelter of the ratio propounded by the authority 1995 (2) Bom.C.R.,361, (the State of Maharashtra v. Kapildevsingh Guptarsingh) that the submission advanced on behalf of the applicant as to merits of the matter cannot be seen when bail on the medical ground is to be considered cannot sustain. In order to substantiate his argument, the contents of paragraph no.8 of the above cited decision are brought to the notice of the Court. Said observations are as under: “The proviso to section 437 authorises the Magistrate to admit a person to bail even when he is reasonably believed to be involved in an offence 5appln-2337-10 punishable with death or life imprisonment, etc. on the ground of his infirmity or sickness. The expression used in that proviso is ‘may’. Therefore, to grant bail or not in view of the expression ‘may’ is left to the discretion of the Magistrate or the concerned Court which is to be considered on consideration of various facts such as the nature of ailment, the availability of treatment in the Government Hospital for such ailment, the seriousness of such ailment, etc. At the same time one cannot ignore and be oblivous to the gravity of the offence under which the accused seeking such a relief is involved. As noticed earlier that respondent has been indicted for the double murder and that was just few days prior to his presentation of application for the purpose.” 7. By pointing out the above observations, it is strongly submitted on behalf of respondent No.1 that even at the time of dealing with the application for bail on medical ground even the merits of the case are required to be seen and considering the present factual position as to the assault of respondent No.1 at the hands of the applicant when he was earlier enlarged on bail with specific directions that not to tamper with the witnesses, it was incumbent upon the learned Magistrate, Bhiwandi to appropriately deal with the bail application on medical ground and he should have given much weight on the merits of the matter so far as 6appln-2337-10 the injuries caused to respondent no.1-complainant on her forehead and on her right palm. In the opinion of this Court, the arguments advanced on behalf of respondent No.1 are required to be accepted, inasmuch as the Court cannot ignore the merits of the matter even if considering the application for bail on medical grounds. 8. Again, during the arguments on behalf of the applicant, learned Senior counsel Shri Mundargi submitted that as on today there is a factual position that the applicant needs treatment of radiology and that even such ground can be available for him at this stage so as to allow the present application. 9. After going through the rival submissions and after considering the merit of the documents which were annexed to the application for bail on medical ground, it must be said that the learned Additional Sessions Judge, Thane has rightly appreciated the point in controversy and has rightly dealt with the matter cancelling the bail granted by the learned Magistrate,Bhiwandi. Apparently, it appears that while deciding the application for bail cancellation of bail presented before the Additional Sessions Judge, Thane by present respondent No.1, much care has been taken by the learned Sessions Judge, Thane calling for the record from the concerned hospital and ascertaining the factual position as to the health of the present applicant as on March, 2010 when in fact the application on medical ground was allowed by the learned Magistrate, Bhiwandi. 10. Considering the reasoning given in the said order dated 23.4.2010 which is 7appln-2337-10 under challenged in the present application, in the opinion of this Court, there is nothing to interfere with the said order. In other words, even as on today, there is nothing cognate before this Court that the applicant needs continuing medical treatment for recurrence of the cancer of rectum. Needless to mention that specific directions could be passed by the appropriate court in the event of urgency as to any medical treatment for the alleged cancer, now again alleged to have been recurred to the applicant. 11. All the same, considering the factual position it is not a fit case in which the order passed by learned Additional Sessions Judge, Thane is required to be interfered with. In the result, present application is disposed of with following order: ORDER: (a) Criminal Application No. 2337/2010 stands rejected. (b) At this stage, on the request on behalf of the applicant, though he is absent today, during the course of arguments and at the time of passing the order, protection earlier granted to continue for a period of three weeks from today subject to the conditions that he shall not indulge in any activity endangering life and safety of respondent No.1. (c) Certified copy is expedited. (A.R.JOSHI,J)