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Criminal Revision No. 317 of 1964, decided on 23rd July 1964.
S. 45‑Medical evidence--- Medical report inadmissible in evidence‑May be used by medical witness to refresh memory.
Ss. 497 & 498--- Order of Sessions Judge granting or refusing bail not to be lightly interfered with.
Abdul Kader and others v. The Crown 7 D L R 637 and Khalid Saigol v. The State P L D 1962 S C 495 distinguished on facts.
Khalid Saigol v. The State P L D 1962 S C 495 fol.
Hamid ul Haq Chowdhury with B. N. Chowdhury and Seraj ul Haq for Petitioner.
Sultan Ahmed for the Opposite‑Party.
Abdul Hakim, Deputy Legal Remembrancer for the State.
The petitioner Gulzaruddin Ahmad alias Gulzar Gazi challenges an order made by Mr. A. S. Md. Rashed, Sessions Judge of Khulna on the 6th June 1964 cancelling an order of granting him bail by the Sub‑Divisional Magistrate, Khulna on 22nd May 1964 and prays for enlarging him on bail.
The petitioner is the Chairman of Chandkhali Union Council and is being prosecuted for an offence under section 376 of the Pakistan Penal Code. It is alleged in the complaint lodged by one Mazeda Khatun in the Court of the Sub‑Divisional Magistrate, Khulna on the 16th May 1962 that she is a refugee girl from India and has been given shelter at the seed godown at Chandkhali and the accused made an immoral proposal to her but was refused. On her refusal, the accused‑petitioner entered the godown at night on the 14th May 1964, gagged her, pressed cloth into her mouth, dragged her out and committed rape on her. After she cried out removing cloth from her mouth, the accused injured her with the end of a revolver and her brother who came to her rescue was threatened with the revolver.
The prosecutrix was then examined on solemn affirmation by the Magistrate who issued warrant of arrest against the accused -petitioner under section 376 of the Code. The accused surrendered before him on 22‑5‑64 and was granted bail on the same day.
The prosecutrix filed a petition before the learned Sessions Judge stating, inter alia, that "she was originally a resident of Gobardanga P. S. Habra in West Bengal and that during the last communal disturbances, the petitioner alongwith old father, one brother and one minor sister came to Pakistan as refugee for safety of "Izzat", life and property and secured registered refugee card."
It is further stated therein that she was ultimately sent by the local administration with her father and others to the accused who is the Chairman of Chandkhali Union Council for rehabilitation and protection. Prayer for cancellation of the bail was made on the ground that the prosecutrix was still living in the same godown near the house of the accused who after release on bail threatened the prosecutrix, and her father and brother to death. He also threatened local witnesses who would not dare to depose in the case if he remained on bail. The learned Sessions Judge issued notice on the accused petitioner who appeared through a lawyer by filing a power but did not file any objection controverting the allegations made against him. The learned Sessions Judge, as already stated, after hearing both the parties, cancelled the bail by his order dated 6‑6‑64 which has been called in question before me mainly on the ground that the prosecution has been instituted at the instance of one Abdul Latif, a bitter enemy of the petitioner who is physically incapable of committing the offence in the manner alleged by the prosecution and that the learned Judge ought to have considered the medical certificate supporting the claim of the physical incapacity of the petitioner on the ground of his right hand, below the elbow, having been almost permanently inactive.
A Rule was issued on the Deputy Commissioner to show cause why the impugned order should not be set aside. A notice was also served on Mazeda Khatun who has appeared in response to the same and filed an affidavit‑in‑opposition denying allegations made in the petition. She has practically repeated the statements made by her before the learned Judge and she has also specifically denied the allegation of her having any connection with Abdul Latif stated to be a bitter enemy of the petitioner. Mr. Hamidul Haq Chowdhury, learned Advocate for the petitioner, submitted that owing to shortness of time he was unable to file an affidavit in‑reply and I expressed my willingness to grant a short adjournment if he prayed for the same. I, however, pointed out that the question of justification for cancellation of the bail would be practically dependent on the materials that were on the record before the Sessions Judge at the time of making the impugned order on 6‑6‑64. Mr. Chowdhury submitted that he did not consider it necessary to ask for time for filing any affidavit‑in reply.
Mr. Chowdhury has submitted that the learned Sessions Judge erred in law in cancelling the bail as there was no direct evidence in the case. In support of his contention, the learned Advocate has placed his reliance on the following passage occurring in a Division Bench decision of this Court in the case of Abdul Kadar and others v. The Crown (7 D L R 637) and has drawn my attention:‑
"When an accused is first brought before the Court, the evidence of the Police‑Officer that he is in possession of reliable evidence may be sufficient to remand the accused to custody but for the cancellation of bail already granted some direct evidence of the accused's guilt is necessary."
Both Mr. Sultan Ahmed, the learned Advocate for the complainant Mazeda Khatun and the learned Deputy Legal Remembrancer who appears for the State, claim also on the authority of this decision that the bail has rightly been cancelled as there is direct evidence in this case and they also contend that accused‑petitioner in the aforesaid case was granted bail entirely on different facts and circumstances.
On an examination of the facts of the case cited before me it appears that the petitioners were not named in the First Information Report. There was no allegation of tampering with the evidence. In that case it was observed as follows:‑
"In the present case there is not only no such direct evidence whatsoever from any Police Officer that he is in possession of any reliable information indicating the guilt of the petitioners. The only material here is the letter addressed to the Sub‑Divisional Officer by the son of the deceased upon which the bail was cancelled."
In this case the learned Sessions Judge had before him the petition of complaint, statement of the complainant on solemn affirmation and also the petition for the cancellation of the bail referred to above. In the case cited by Mr. Chowdhury there was no allegation of tampering with the evidence nor the petitioners were mentioned in the First Information Report. The present case, is therefore, clearly distinguishable from the facts of the case cited before me.
The requirement of some direct evidence' for the purpose of refusing bail has been fulfilled in this case.
Mr. Chowdhury submits that mere accusation of a grave offence is not sufficient to refuse bail and in support of his contention places his reliance on the following observation of their Lordships of the Supreme Court in the case of Khalid Saigol v. The State (P L D 1962 S C 495).
"We may state straightway that where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions properly if it were to proceed upon any a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, nor can there be any rule of practice upon the basis of which such a discretion can be judicially exercised for, rarely will there be two cases in which the facts are alike."
The learned Deputy Legal Remembrancer and Mr. Sultan Ahmed have also placed their reliance on the same judgment of the Supreme Court and have submitted on the authority of the following observation that if a Court finds that an accused in a serious offence is capable of tampering with the evidence, bail may be refused:‑
"We are not unmindful of the importance of preserving the power of Courts to be able to act in such a manner as to ensure that they are not hampered in dispensing justice or that their final order, whatever it may be, can be effectively carried out. But we cannot help observing that it is equally important that no person should be deprived of his liberty or denied the opportunity to look after his own case, except for sufficient and cogent reasons. Thus where the accused person is capable of absconding or of tampering with witnesses, the maximum restraint may well be justifiably imposed."
Again, on a reference to the facts of the case it will be clear that the two cases are clearly distinguishable on facts. In Khalid Saigol's case the accused persons were acquitted after a trial. Against an order of acquittal, the State preferred an appeal. The High Court admitted the same for hearing and non‑bailable warrants were issued against the persons. Later, bail applications on behalf of the accused‑petitioners were rejected by the High Court on the ground that one of the offences alleged was under section 302/149 of the Penal Code and it was a non‑bailable offence punishable with death or transportation for life and it was further stated that normal practice' of that Court was to refuse bail in such cases.
The Supreme Court held that there should be no normal practice' and in each case discretion should be exercised on a consideration of the relevant facts and circumstances. In the case before me there has been no trial as yet and no acquittal or conviction. The learned Sessions Judge has not cancelled the bail on the ground that normal practice' was to refuse the bail in cases punishable with death or transportation for life.
The Supreme Court has observed in this very case that "the nature of the accusation and heinousness of the crime alleged are no doubt very relevant circumstances to be taken into consideration; but by themselves they are not the only circumstances . . . . . ."
The learned Sessions Judge has taken into consideration "The nature of the accusation and heinousness of the crime alleged" as they have been held to be relevant. But he has not stopped there. He has taken other circumstances also into consideration. He has considered allegation that the accused -petitioner has been threatening the witnesses and tampering with the evidence after his release on bail. He also in this connection rightly referred to the prosecutrix being a refugee girl indicating thereby her helplessness. He has also given due consideration to the question of enmity with one Abdul Latif as alleged by the accused‑petitioner. The Supreme Court also observed that further considerations "must necessarily depend upon the facts and circumstances of each case, and no hard and fast rule can be laid down". Keeping this helpful guidance in view, I examined the order of the learned Sessions Judge rind I must say he has approached the case precisely in accordance with the principles laid down by the Supreme Court.
The learned Judge after hearing both the parties and considering the materials on record observed:‑
"The Chairman is undoubtedly a man of influence and in such circumstances it is quite natural that the case will be nipped in the bud because of the influence of the Chairman who is the accused in the present case."
The learned Judge has proceeded also to say that "Hence in a serious case like this where the accused is a man of considerable influence, there is every chance of tampering with the evidence". There were sufficient materials before the learned Judge to reach the conclusion as he did in the passage quoted above and I find no reason to dissent from the view taken by him. In the case of Khalid Saigol v. The State, relied on by both the parties, it has been clearly laid down that "where the accused person is capable of absconding or tampering with witnesses, the maximum restraint may well be justifiably imposed". If a person is capable of tampering with evidence, then on a consideration of other circumstances, if necessary, maximum restraint may be justifiably imposed. I would further say that in the case of Khalid Saigol also the Supreme Court took into consideration the question of tampering with the evidence and observed that in that case an appeal was pending before the High Court and that being so, the question of calling the witnesses might arise only in exceptional cases and the risk of tampering with witnesses was therefore too remote. That case is therefore of no help to Mr. Chowdhury as bail in that case was granted in entirely different circumstances. Moreover, as indicated above, the observations made in that case support the contentions of the learned Advocate for the opposite -parties.
Mr. Chowdhry has next placed the Ground No. 3 of the petition which is as follows:‑
"For that by finding himself "that there is frail material against the accused" the cancellation of the bail was arbitrary."
I must at once say that the statement of fact on which the ground is based is incorrect. The learned Judge has arrived at no such finding. In the certified copy of the judgment annexed with the petition, the word is not "frail" but "fair". I do not know how the word "frail" has been used in the petition.
When the Rule was issued the records were called for and on persual of the judgment which is in the hand‑writing of the Sessions Judge, it appears he stated: "there is prima facie material against the accused to commit him with the offence complained of". After it was shown to Mr. Chowdhury he concedes that the word is "fair" not "frail". He of course refuses to read "prima facie". There is a typed copy of the judgment in the record. It appears the word has been corrected and the expression "prima facie" inserted. In the original order there is no correction. The expression‑appears to me to be "prima facie". Reading the judgment as a whole, I am satisfied, that the learned Judge is of opinion that there are materials on record to commit the accused‑petitioner for trial; in other words, there are reasonable grounds for believing' that the accused has been guilty. This contention of Mr. Chowdhury is, therefore, of no substance.
The omission of the learned Sessions Judge to consider the medical certificate obtained by the petitioner in support of his claim that his right hand is almost inactive came under heavy fire from Mr. Chowdhury.
This argument of Mr. Chowdhury is based on Ground No. 3 which is in the following terms:
"For that the learned Judge seriously erred in law in not considering the report of the Civil Surgeon bearing out that the petitioner's right hand was totally incapacitated and disabled a circumstance completely belying the prosecution story."
The cause title of this petition is in the following terms:‑
"In the matter of an order passed by Mr. A. S. Md. Rashed, Sessions Judge, Khulna on the 6th June 1964 . . . . . . . . . ." The medical certificate is dated 12‑6‑64. I do not know how on the 6th June 1964 the Sessions Judge could consider the certificate brought into existence on the 12th June 1964. On an inspection of the record of the Court of the Sessions Judge, I find that another petition for bail was filed before him on the 15th June 1964 together with this Medical Certificate which bears the seal of the Sessions Judge, date of the seal being 15th June 1964. The contention of Mr. Chowdhury has also no substance as the Sessions Judge cannot be blamed for not considering on the 6th June a certificate which was not in existence then. The ground gives a wrong impression to the effect that it was in existence on the date of the making of the impugned order on the 6th June. It is also to be noticed that it gave inaccurate description of the incapacity. It is claimed in the ground that the certificate bears out "the petitioner's right hand was totally incapacitated and disabled" whereas it is stated in the certificate that "right hand is almost permanently inactive". Moreover, it is mentioned in the ground as a "report" although it is merely a certificate privately obtained.
At the time of obtaining the Rule from me, this ground was strenuously pressed and I had no means of finding out the facts stated above as the record was not before me. There was absolutely no mention in this petition about the petition filed before the Sessions Judge on the 15th June 1964 together with this medical certificate. On the same day the learned Sessions Judge made the following order:
"The bail of the accused was cancelled by me and the accused was directed to surrender. He has not as yet surrendered. So, this petition deserves no consideration. Hence it is rejected merrily."
In case of compliance with this direction, the learned Judge might have taken into consideration the new circumstances emerging from the medical certificate. The learned Deputy Legal Remembrancer has rightly contended that it is inadmissible. But in bail matters it is generally considered. I really do not know how the petitioner can make a grievance when the learned Judge clearly said that the petition was rejected on the ground of not surrendering as directed by him. The petitioner did not surrender at Khulna nor did he renew his prayer before the learned Sessions Judge. He surrendered at Dacca and obtained a Rule from me without making any mention of the order dated the 15th June 1964 as quoted above.
On the 22nd May 1964, the petitioner obtained bail from the Sub‑Divisional Magistrate by surrendering to that Court by a petition. In that petition he mentioned about the enmity with Abdul Latif but did not mention anything about his right hand being inactive. He did not mention about it even when the learned Judge made the impugned order on 6‑6‑64. It was for the first time raised in the petition of the 15th June. Moreover, there is a seizure list in the record and it shows that the accused -petitioner owned and possessed a revolver by virtue of a licence granted to him on 10‑5‑61. It has been claimed that the petitioner's right hand is inactive since 5 years and that he cannot even lift a pendil by his right hand. But only 3 years ago, in 1961 he obtained a licence of a revolver and this was pointed out to Mr. Chowdhury. He could give no satisfactory explanation. Be that as it may, in view of the circumstances indicated above, no grievance can be made against the Sessions Judge for non- consideration of the medical certificate filed before him on 15‑6‑64.
Mr. Chowdhury has next contended that the petition for cancellation of the bail presented before the learned Judge is not certified by an affidavit. The petition of Mr. Chowdhury's client filed before the Magistrate on the 22nd May 1964 in which allegation of enmity with one Abdul Latif has been made is not supported by any affidavit nor is the petition filed before the Sessions Judge on the 15th June in which it is stated that his right hand is inactive is verified by any one.
In the Courts below these petitions are ordinarily made without affidavit. At any rate, this point also was not raised before the learned Sessions Judge when he made the impugned order. This contention of Mr. Chowdhury is also of no substance.
Mr. Chowdhury has next submitted that in the impugned order there is reference about a medical report in support of the allegation of rape but there is no such report in the record. At the time of hearing on inspection of the record, I did not find any such report. Learned Advocates appearing in the case also did not find any medical report. Mr. Sultan Ahmed the learned Advocate for the complainant, however, during the course of hearing mentioned that he found in his papers a certified copy of an order directing medical examination of the prosecutrix and a medical report in original annexed to the same. It bears a seal with the inscription of "Dr. Md. Enayetullah, M. B. B. S. Assistant Surgeon, Sadar, Khulna." The certified copy of the said order and the medical report both are dated 16‑5‑64. In the report it is stated that the complainant was examined at 4 p.m. on 16‑5‑64. It may be that the complainant went to the hospital with the certified copy of the orders got‑ herself examined on the same day, obtained the report and kept it with herself, for, it does not bear seal of any Court. For the quick medical examination, the certified copy of the order was probably hurriedly taken on the same day and this is why the report is found enclosed with the said certified copy. As suggested by the learned Advocates, the said certified copy together with the medical report have been signed by Mr. Sultan Ahmed, Advocate for the complainant and Mr. Serajul Haq one of the Advocates for the accused‑petitioner for identification. The Deputy Registrar of this Court is directed to forward the same to the Sessions Judge to enable him to find out if this medical report was before him at the time of hearing this matter and if so to be retained by him to complete his record. Care should be taken so that no party can take back any document without endorsement to that effect in the record of the Court.
Now, reverting to the merits of the petition for bail, I shall presently indicate that it makes no difference. The learned Deputy Legal Remembrancer submits that after all the report is inadmissible in evidence. It is true that a medical report is inadmissible in evidence and it can only be used by the medical witness for refreshing his memory. He is, however, right in hi A further submission that no trial having begun, it can be perused when considering the question of bail. Mr. Chowdhury on perusal of the report has contended that it may at best indicate old sexual intercourse but no forcible rape. The Deputy Legal Remembrancer on the other hand, strenuously urges that it certainly does. In view of the impending enquiry under Chapter XVIII of the Code of Criminal Procedure and a possible trial if committed to the Court of Sessions, a further discussion of this question at this stage is risky and undesirable. For the purpose of this petition for bail, suffice it to say that there are sufficient materials even excluding the medical report to reach the same conclusion as the learned Sessions Judge has done. The grievance made by Mr. Chowdhury in this behalf is, therefore, of no avail to him.
No other question has been pressed before me nor raised in the grounds of the petition.
The contention of the learned Deputy Legal Remembrancer that the Magistrate granted bail practically in one sentence without applying his mind to the relevant circumstances' in the light of the observation of the Supreme Court is of substance. The learned Sessions Judge has rightly set aside the order of the learned Magistrate who improperly exercised his discretion in this respect.
It has been consistently held that an order granting or refusing a bail by a Sessions Judge should not be lightly interfered with, and in this case I must observe he has exercised his discretion properly and judicially. The learned Sessions Judge has acted in accordance with the principles laid down by the Supreme Court. The question of interference with the impugned order in this case does not arise and it must be upheld.
Frankly speaking, I have also given my most anxious consideration to the questions of the curtailment of the liberty of a citizen, the seriousness of the accusation and heinousness of the offence alleged, the allegations of the enmity with a person in the locality, the claim of the right hand being inactive, the danger to the safety of the prosecutrix and her people, the allegation and capability of tampering with the witnesses, the position of influence of the accused, disadvantage of defence while in detention, the chance of the case being nipped in the bud' if the prisoner is enlarged on bail and I have reached the conclusion that in facts and circumstances of the case, no bail should be granted to the petitioner at this stage.
In view of the pending proceedings, I have tried to discuss with caution the questions involved in this petition for bail. I must, however, take particular care to say that I must not be understood to have expressed any opinion on facts one way or the other.
Since I find myself unable to grant the bail, I direct, in order to avoid delay, that this case should be given priority over other cases and it should be proceeded with as expeditiously as possible. Let the records of the case be sent down immedi ately.
For the reasons stated above, the Rule is discharged and the petition rejected.
S. Q. Rule discharged.
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