1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30.09.2011 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Crl.O.P.(MD).No.11600 of 2011 Sangili :Petitioner/Defacto Complainant -Vs- 1.The State Rep. By Sub Inspector of Police, All Women Police Station, Virudhunagar. (Crime No.9 of 2011) :1st Respondent/Complainant 2.S.Vairavan :2nd Respondent/Petitioner PRAYER:Petition filed under Section 439(2) of the Code of Criminal Procedure, to set aside the order passed by the learned Principal Sessions Judge, Virudhunagar in Cr.M.P.No.2214 of 2011 dated 17.08.2011 and thereby cancel the order of bail. For Petitioner : Mr.P.Pethu Rajesh For 1st Respondent: Mr.K.V.Rajarajan, Government Advocate(Crl.Side) For 2nd Respondent: Mr.G.Mariappan ORDER This petition has been filed by the petitioner to cancel the bail granted by the learned Principal Sessions Judge, Virudhunagar in Cr.M.P.No.2214 of 2011 dated 17.08.2011. 2.The learned counsel for the petitioner submitted that the trial Court has granted bail by taking note of the xerox copy of the medical opinion obtained from the doctor. Therefore, the Court below ought not to have relied upon the said medical opinion obtained at the instance of the accused. Hence, the learned counsel for the petitioner submitted that the bail granted will have to cancelled. In support of his contention, the learned counsel relied on the decision of the Hon'ble Apex Court in Manjit Prakash v. Shobha Devi, (2009) 13 Supreme Court Cases 785 and submitted that the cancellation will have to be done considering the seriousness of the crime. 3.Per contra, the learned counsel for the second respondent submitted that it is not correct to state that the respondent has produced the medical certificate from a private doctor and what has been produced is the copy of the second page of the the medical report produced by the public prosecutor, which shows that the ingredients of the offence under Section 376 of the Criminal Procedure Code is not made. Therefore, the learned counsel for the second respondent submitted that the said order does not warrant any interference. https://hcservices.ecourts.gov.in/hcservices/ 2 4.Admittedly, the second respondent is in custody for more than 31 days before passing the order by the learned Principal District and Sessions Judge, Virudhunagar. The alleged offence is the one punishable under Section 376 of Cr.P.C. The respondent has been in custody from 18.07.2011 onwards. There is nothing on record to indicate the averments made by the respondent No.2 that what has been produced before the trial Court is nothing but the second page of medical report submitted by the medical officer is not true and correct. The learned counsel also produced a copy of the same. Basing reliance upon the same, the Court below has found that prima facie the alleged offence has not been made out. A perusal of the order passed by the learned Principal Sessions Judge, Virudhunagar would show that the copy has been obtained from the concerned doctor and not a private doctor as alleged here. Therefore, the contention of the learned counsel for the petitioner, does not have any factual basis. 5.There is no difficulty in appreciating the legal principle enunciated in the judgment refereed supra by the learned counsel for the petitioner. But in a case where the alleged accused has been in custody for more than 31 days and it is upon the medical report given by the Government doctor, the trial Court has granted bail, it cannot be said that there is non-application of mind. In such view of the same, this Court does not find any reason to interference with the order passed by the Court below. 6.In the result, the Criminal Original Petition is dismissed. Sd/- Assistant Registrar (T&P) / TRUE COPY / Sub Assistant Registrar To: 1.The Sub Inspector of Police, All Women Police Station, Virudhunagar. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 3.The Principal Sessions Judge, Virudhunagar. Sj Crl.O.P.(MD).No.11600 of 2011 RP/20.10.2011/2P/4C. 30.09.2011 https://hcservices.ecourts.gov.in/hcservices/