IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 3125 of 2010()
1. RAJAN.K.S, KOCHUTHUNDIYIL PUTHEN VEEDU,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.C.S.MANILAL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :12/07/2010
O R D E R
C.R.
K.HEMA, J.
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Bail Application No.3125 of 2010
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Dated 12th July, 2010.
O R D E R
This petition is filed for granting anticipatory bail, under
section 438 of the Code of criminal Procedure Code (`the Code’, for
short).
2. According to prosecution, the excise officials received
anonymous telephone call that ganja was kept in the tea shop run by
petitioner and they proceeded to the said shop and on 22.4.2010 at
about 11.30 a.m., they conducted a search and seized 1.528 Kg. of
Ganja from the said shop. A case was registered against petitioner
under Section 20(b)(ii) of the Narcotic Drugs and Psycotropic
Substances Act (`the Act’, for short).
3. Learned counsel for petitioner submitted that petitioner
was hospitalised for six days from 20.04.2010 till 26.4.2010 and on
the alleged date of occurrence, viz., 22.4.2010, he was at hospital,
undergoing treatment, as an inpatient. Annexure II-discharge
summary issued by the doctor will clearly establish these facts, it is
further submitted. According to petitioner, this is a false case and
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hence, anticipatory bail may be granted, it is argued.
4. During pendency of this petition, petitioner requested
for an opportunity to explain his innocence to the Investigating Officer.
Being carried away by the facts stated in Annexure II-discharge
summary, petitioner was given an opportunity, as requested and he
was directed to report before the Investigating Officer. Accordingly,
he surrendered before the Investigating officer and he was thoroughly
interrogated by Investigating Officer, it is submitted by learned Public
Prosecutor.
5. Learned Public Prosecutor also submitted that during
interrogation, a doubt arose on the genuineness of Annexure II-
discharge summary and hence, an enquiry was conducted into the
genuineness of the document. The doctor who issued the document
was also questioned by Investigating Officer and his statement was
also recorded. It is revealed on enquiry that Annexure II is a
fabricated document and the entries made therein are all false. The
O.P no. and I.P. no. which are referred to in Annexure II, which are
purported to be assigned to petitioner do not actually relate to
petitioner. Those numbers were allotted to some other persons, it is
submitted.
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6. I.P. no. 12741 was issued to one Muralidharan (not
petitioner), who was admitted in the hospital and treated as an
inpatient, about 9 years back in 2001. O.P.no.2256 referred to in
Annexure II was issued to one Saida, who was treated as an out-
patient in the hospital about four months prior to the date of search,
on 18.1.2010. Neither of the above numbers referred to in Annexure
II relate to petitioner. While the doctor was questioned on this, he told
the investigating officer that he had written certain numbers in
Annexure II at random, which occurred to his imagination.
7. It is evident from the enquiry that petitioner, with the
aid of the doctor created a false document for using the same as
genuine, in the proceedings and he produced Annexure II before this
court, with a view to defraud the court and get anticipatory bail, it is
submitted by learned Public Prosecutor. No relief may be granted to
such a person, it is strongly argued. Considering gravity of offence
also, this is not a fit case to grant anticipatory bail, it is further
argued.
8. On hearing both sides and on a perusal of the available
records, I find that this is not a fit case to grant anticipatory bail. The
offence allegedly committed by petitioner is under the NDPS Act. The
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quantity of Ganja involved is 1.528 Kg. Petitioner has not made out
any ground to get anticipatory bail. Petitioner took up a plea of alibi
but, he utterly failed in substantiating the same. He also produced a
false and fabricated medical record before this court, knowing it to be
false, to obtain an order in his favour and thereby, he attempted to
defraud this court.
9. The conduct of the party who seeks relief under section
438 of the Code is relevant to decide whether anticipatory bail can be
granted or not. If the applicant’s conduct is contemptuous, fraudulent
or unfair, the court shall refuse to exercise its discretion under section
438 of the Code in his favour. The extra ordinary relief shall not be
extended to a person who approaches the court with unclean hands. A
person who produces a fabricated medical record to obtain an order of
anticipatory bail does not deserve any relief under section 438 of the
Code.
10. On the facts and circumstances of the case, it appears
that petitioner is , prima facie, guilty of a highly objectionable conduct,
in procuring a false medical record and producing the same before this
court, with a view to deceive this Court and obtain an order of
anticipatory bail. If the allegations made against him in respect of the
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medical record are established, those by themselves would amount to
commission of an offence. To such a person, I am most reluctant to
grant anticipatory bail. In my view, he deserves to be dealt with, for
the criminal act which he appears to have heen committed, in
accordance with law.
11. The power under section 438 of the Code is
discretionary in character. It is also extraordinary in nature. In Adri
Dharan Das v. State of W.B in (2005) 4 SCC 303, the Supreme
Court held, “the power exercisable under Section 438 is somewhat
extraordinary in character”. While exercising discretion, the court can
also look into the conduct of the party, who seeks the discretionary
relief.
12. In Mohammadia Coop. Building Society Ltd. v.
Lakshmi Srinivasa Coop. Building Society Ltd.,(2008) 7 SCC
310, the Supreme Court considered the role of conduct of a party
while seeking discretionary relief and it is held thus:
“There cannot be any doubt whatsoever that the
discretion has to be exercised judiciously and not
arbitrarily. But for the said purpose, the conduct
of the plaintiff plays an important role. The courts
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ordinarily would not grant any relief in favour of
the person who approaches the court with a pair
of dirty hands”.
13. A bare perusal of Annexure II-discharge summary
reveals that several entries are made therein to make it appear that
the document is genuine. The entries are made in such a way that any
court would easily be persuaded to act upon the document. Not only
false IP and OP numbers are shown in the document but several other
false details relating to the treatment purportedly given to the patient
on different dates are also incorporated in the document in a
convincing manner. A lot of effort seems to have been taken in
creating the false document.
14. I am surprised to hear from learned Public Prosecutor that
the doctor who issued Annexure II is a Medical Officer attached to the
Medical College Hospital, Alappuzha and he is now working in a private
hospital, after taking leave from the Medical College. I have gone
through the statement of the doctor recorded by the Investigating
Officer. If the allegations are true, I have no doubt that whoever be
the doctor, who appears to have created Annexure II-discharge
summary, does not deserve to continue in his profession.
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15. The doctor has not only abused the noble medical
profession, but he committed a serious offence also. Since I have not
heard the doctor who has allegedly concocted Annexure II, I am not
making any further comments. When the fabrication from the side of
the doctor was brought to the notice of petitioner’s counsel, he had
nothing to say, except that some action may be taken against the
doctor who issued Annexure II. In my view, the doctor who created
Annexure II deserves to be dealt with for the commission of the
alleged criminal act, in accordance with law.
16. Considering the several facts discussed above, I find
that anticipatory bail cannot be granted to petitioner who has
attempted to defraud this court. This petition has only to be dismissed
with the contempt it deserves. He is bound to surrender and co-
operate with investigation, without any delay. If not, it is likely that
investigation will be adversely affected. In the peculiar facts and
circumstances, I also find that administration of justice demands that
exemplary cost must be ordered against petitioner.
17. I am also of view that to secure ends of justice,
certain other directions also have to be issued by this court, while
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disposing of this petition. Taking all the above facts into consideration,
the following order is passed :
1. The prayer for anticipatory bail by petitioner is
rejected.
2. Petitioner shall surrender before the Investigating
Officer without any delay and co-operate with the
investigation.
3. Whether he surrenders or not, respondent is at liberty
to arrest him and proceed against him in accordance
with law.
4. No further application by petitioner in this crime for
anticipatory bail, will be entertained by this Court
hereafter.
5. Petitioner shall pay an amount of Rs.15,000/- to the
Kerala High Court Legal Services Committee within two
months from today, as cost.
6. At the time of consideration of bail application, if any,
filed by petitioner, the trial court shall ensure that the
above cost is paid by petitioner.
7. Registry shall forward a copy of this order along with
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copy of Annexure II to the Secretary, Medical Council
and also, to the Secretary, Health services, who is
dealing with Medical Education, for taking necessary
action against the Medical Officer who has created
Annexure II, in the light of the observations made in
this order.
8. Issue a copy of this order to learned Public Prosecutor.
Petition is dismissed with costs.
K.HEMA, JUDGE.
tgs