High Court Division
(Criminal Miscellaneous Jurisdiction)
Quamrul Islam
Siddiqui J
Sheikh Md Zakir
Hossain J
Mahfuz Ali. …….
…….Accused- Petitioner
vs
State, represented by the DC, Chittagong ….. Opposite-Party
Judgment July 31st, 2013.
Code of Criminal Procedure (V of 1898)
Section 498
The accused-petitioner is a patient of transitional carcinoma of ureter and kidney (Rt) and he has already received seven cycle chemotherapy. The present accused-petitioner has been suffering from the deadly disease like transitional carcinoma (cancer). The accused-petitioner is entitled to bail on health ground as he has been suffering from deadly disease like cancer …….(7, 8 & 10)
Md Abdul Hamid vs State, 3 BCR (AD) 86 ref.
AKM Faiz, Advocate with Mohammad Bakir Uddin Bhuiyan, Advocates-For the accused-Petitioner.
Abdul Baset Majumder, Advocate-For the informant-Opposite- Party.
Judgment
1. Quamrul Islam Siddiqui J : On 1-7-2013 a Division Bench of this Court granted bail to the accused-petitioner Mahfuz Ali for a period of 6(six) months. Against this order dated 6-7-2013 passed by the High Court Divisions the State and the informant preferred Criminal Miscellaneous Petition Case Nos. 293 of 2013 and 300 of 2013 before the Appellate Division. The learned Chamber Judge of the Appellate Division by the order dated 14-7-2013 stayed the order of the High Court Division dated 1-7-2013 for two weeks and directed this Court to hear the Rule and dispose of the same within two weeks from the date of receipt of the order of the Appellate Division. Accordingly, we posted the matter in the cause list and heard both the sides at length.
2. We have perused the impugned order dated 1-7-2013 passed by the High Court Division and the direction dated 14-7-2013 given by the Appel1ate Division, the FIR and other relevant papers. In fact there is specific overt act against the accused-petitioner in the FIR and the injury alleged to have been caused by the accused-petitioner as mentioned in the FIR corresponds to the injury mentioned in the post mortem report. However, considering the health condition of the accused-petitioner the High Court Division granted bail to the accused-petitioner for a period of 6(six) months.
3. Mr AKM Faiz, learned Advocate appearing for the accused-petitioner submits that on 16-6-2011 the accused-petitioner consulted the doctor and the doctor diagnosed that the accused-petitioner had been suffering from transitional carcinoma of ureter and kidney (Rt). The doctor also stated that the accused petitioner has been under this treatment from September, 2007 and by now the accused-petitioner has received seven cycle chemotherapy with compete response. The learned Advocate refers to Annexure-F and submits that this accused-petitioner had a check up from Medinova Medical Services Ltd. and the report shows that the accused-petitioner is a patient of transitional cell carcinoma at urinary bladder and he is in post chemotherapy stage. He then submits that considering the fact that the accused-petitioner has been suffering from a deadly disease like cancer, a Division Bench of this Court enlarged the accused-petitioner on bail for 6 months. He lastly submits that since the accused-petitioner has been suffering from a deadly disease of transitional carcinoma of ureter and kidney (right) (cancer), he may be allowed to continue with the bail. The learned Advocate for the accused-petitioner also refers .0 a medical certificate issued on 16-6-2011 by Mr ABMF Karim, Md FRCR PhD. This certificate was issued by the doctor on 16-6-2011 and (ole occurrence took place on 21-10-2012.
The learned Advocate for the accused-petitioner submits that it is not conceivable that the accused-petitioner has procured the doctor’s Certificate relating to his deadly disease much before the occurrence took place and he also submits that it is equally inconceivable that a person falsely claims that he has been suffering from deadly disease like cancer for the purpose of granting bail.
4. Mr Abdul Baset Majumder, the learned Advocate appeared in aid of the State and submits that there is specific overt act allegation against this accused-petitioner that he dealt with ballam blow in the chest of the deceased and that this injury also corresponds to the injury mentioned in the post mortem report. He again submits that the certificate produced by the accused-petitioner has been procured from a private clinic and that this certificate creates doubts about its genuineness.
5. Dr Md Bashir Ullah, the learned Deputy Attorney-General adopts the submission of the learned Advocate Mr Abdul Baset Majumder and submits that since there is specific overt act against the accused-petitioner there is no scope to consider the application of bail of the accused-petitioner at this stage.
6. We have perused the FIR and other relevant papers. The accused-petitioner has submitted a certificate from Medinova Medical Services Ltd. and the report shows that the accused-petitioner has been suffering from transitional cell carcinoma at urinary bladder and he is in post chemotherapy stage.
This report for Medinova was issued 19-9-2012, that is, one month prior to the occurrence. Therefore, papers submitted by the accused petitioner show that the accused-petitioner was provided with treatment by the doctor much before the occurrence took place.
7. From the doctors report we find that the accused-petitioner is a patient of transitional carcinoma of ureter and kidney (Rt) and he has already received seven cycle chemotherapy.
The learned Advocate for the accused-petitioner refers to a case of Md Abdul Hamid, vs State, 3 BCR (AD) 86. In the case referred to above, the Appellate Division has held as under:
“We are satisfied that the appellant is a heart patient and he is suffering from serious disease. Such hypertension and serious anaemia from bacilary dysentery, treatment of which is not available in the jail and unless the appellant is enlarged on bail to enable him to batter medical treatment by specialist inside the jail there is risk of his life. In view of the matter, on this special ground, the appeal is allowed and the order of the High Court Division is set-aside. Let the appellant be released on bail to the satisfaction of the Deputy Commissioner, Sylhet till conclusion the trial, subject to his not misusing the bail.”
8. From the above pronouncement of the Appellate Division, we find that on the ground of illness the Appellate Division enlarged the accused-petitioner on bail. The present case is much more serious than the case referred to above as the present accused-petitioner has been suffering from the deadly disease like transitional carcinoma (cancer).
9. We find that the facts and circumstances of the case referred to above and the facts and circumstances of the case in hand are identical. Therefore, the principle expounded in the case referred to above fully applies in the case in hand.
10. In view of the facts and circumstances of the case and the discussions made hereinbefore we are of the opinion that the accused-petitioner is entitled to bail on health ground as has been suffering from deadly disease like cancer. Accordingly, we find substance in this Rule.
In the result, the Rule is made absolute. The ad-interim bail granted to the accused-petitioner by a Division Bench of the High Court Division on 1-7-2013 is hereby confirmed.
(Criminal Miscellaneous Jurisdiction)
Quamrul Islam
Siddiqui J
Sheikh Md Zakir
Hossain J
Mahfuz Ali. …….
…….Accused- Petitioner
vs
State, represented by the DC, Chittagong ….. Opposite-Party
Judgment July 31st, 2013.
Code of Criminal Procedure (V of 1898)
Section 498
The accused-petitioner is a patient of transitional carcinoma of ureter and kidney (Rt) and he has already received seven cycle chemotherapy. The present accused-petitioner has been suffering from the deadly disease like transitional carcinoma (cancer). The accused-petitioner is entitled to bail on health ground as he has been suffering from deadly disease like cancer …….(7, 8 & 10)
Md Abdul Hamid vs State, 3 BCR (AD) 86 ref.
AKM Faiz, Advocate with Mohammad Bakir Uddin Bhuiyan, Advocates-For the accused-Petitioner.
Abdul Baset Majumder, Advocate-For the informant-Opposite- Party.
Judgment
1. Quamrul Islam Siddiqui J : On 1-7-2013 a Division Bench of this Court granted bail to the accused-petitioner Mahfuz Ali for a period of 6(six) months. Against this order dated 6-7-2013 passed by the High Court Divisions the State and the informant preferred Criminal Miscellaneous Petition Case Nos. 293 of 2013 and 300 of 2013 before the Appellate Division. The learned Chamber Judge of the Appellate Division by the order dated 14-7-2013 stayed the order of the High Court Division dated 1-7-2013 for two weeks and directed this Court to hear the Rule and dispose of the same within two weeks from the date of receipt of the order of the Appellate Division. Accordingly, we posted the matter in the cause list and heard both the sides at length.
2. We have perused the impugned order dated 1-7-2013 passed by the High Court Division and the direction dated 14-7-2013 given by the Appel1ate Division, the FIR and other relevant papers. In fact there is specific overt act against the accused-petitioner in the FIR and the injury alleged to have been caused by the accused-petitioner as mentioned in the FIR corresponds to the injury mentioned in the post mortem report. However, considering the health condition of the accused-petitioner the High Court Division granted bail to the accused-petitioner for a period of 6(six) months.
3. Mr AKM Faiz, learned Advocate appearing for the accused-petitioner submits that on 16-6-2011 the accused-petitioner consulted the doctor and the doctor diagnosed that the accused-petitioner had been suffering from transitional carcinoma of ureter and kidney (Rt). The doctor also stated that the accused petitioner has been under this treatment from September, 2007 and by now the accused-petitioner has received seven cycle chemotherapy with compete response. The learned Advocate refers to Annexure-F and submits that this accused-petitioner had a check up from Medinova Medical Services Ltd. and the report shows that the accused-petitioner is a patient of transitional cell carcinoma at urinary bladder and he is in post chemotherapy stage. He then submits that considering the fact that the accused-petitioner has been suffering from a deadly disease like cancer, a Division Bench of this Court enlarged the accused-petitioner on bail for 6 months. He lastly submits that since the accused-petitioner has been suffering from a deadly disease of transitional carcinoma of ureter and kidney (right) (cancer), he may be allowed to continue with the bail. The learned Advocate for the accused-petitioner also refers .0 a medical certificate issued on 16-6-2011 by Mr ABMF Karim, Md FRCR PhD. This certificate was issued by the doctor on 16-6-2011 and (ole occurrence took place on 21-10-2012.
The learned Advocate for the accused-petitioner submits that it is not conceivable that the accused-petitioner has procured the doctor’s Certificate relating to his deadly disease much before the occurrence took place and he also submits that it is equally inconceivable that a person falsely claims that he has been suffering from deadly disease like cancer for the purpose of granting bail.
4. Mr Abdul Baset Majumder, the learned Advocate appeared in aid of the State and submits that there is specific overt act allegation against this accused-petitioner that he dealt with ballam blow in the chest of the deceased and that this injury also corresponds to the injury mentioned in the post mortem report. He again submits that the certificate produced by the accused-petitioner has been procured from a private clinic and that this certificate creates doubts about its genuineness.
5. Dr Md Bashir Ullah, the learned Deputy Attorney-General adopts the submission of the learned Advocate Mr Abdul Baset Majumder and submits that since there is specific overt act against the accused-petitioner there is no scope to consider the application of bail of the accused-petitioner at this stage.
6. We have perused the FIR and other relevant papers. The accused-petitioner has submitted a certificate from Medinova Medical Services Ltd. and the report shows that the accused-petitioner has been suffering from transitional cell carcinoma at urinary bladder and he is in post chemotherapy stage.
This report for Medinova was issued 19-9-2012, that is, one month prior to the occurrence. Therefore, papers submitted by the accused petitioner show that the accused-petitioner was provided with treatment by the doctor much before the occurrence took place.
7. From the doctors report we find that the accused-petitioner is a patient of transitional carcinoma of ureter and kidney (Rt) and he has already received seven cycle chemotherapy.
The learned Advocate for the accused-petitioner refers to a case of Md Abdul Hamid, vs State, 3 BCR (AD) 86. In the case referred to above, the Appellate Division has held as under:
“We are satisfied that the appellant is a heart patient and he is suffering from serious disease. Such hypertension and serious anaemia from bacilary dysentery, treatment of which is not available in the jail and unless the appellant is enlarged on bail to enable him to batter medical treatment by specialist inside the jail there is risk of his life. In view of the matter, on this special ground, the appeal is allowed and the order of the High Court Division is set-aside. Let the appellant be released on bail to the satisfaction of the Deputy Commissioner, Sylhet till conclusion the trial, subject to his not misusing the bail.”
8. From the above pronouncement of the Appellate Division, we find that on the ground of illness the Appellate Division enlarged the accused-petitioner on bail. The present case is much more serious than the case referred to above as the present accused-petitioner has been suffering from the deadly disease like transitional carcinoma (cancer).
9. We find that the facts and circumstances of the case referred to above and the facts and circumstances of the case in hand are identical. Therefore, the principle expounded in the case referred to above fully applies in the case in hand.
10. In view of the facts and circumstances of the case and the discussions made hereinbefore we are of the opinion that the accused-petitioner is entitled to bail on health ground as has been suffering from deadly disease like cancer. Accordingly, we find substance in this Rule.
In the result, the Rule is made absolute. The ad-interim bail granted to the accused-petitioner by a Division Bench of the High Court Division on 1-7-2013 is hereby confirmed.
