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In respect of—Passing of Order
There is no dispute that the writ petitioner who filed the writ petition
can very well make a prayer for non-prosecution and it is upon the
writ-petitioner to proceed with the case or not. But in the present case
the order for discharge for non-prosecution ought not to have been made by
another Division Bench in view of the fact the order of another Division
Bench. Judicial propriety and norm do not approve of such passing of order
by a another Division Bench when there was a pending order by another
Division Bench. The learned Judges who passed the impugned order ought to
have been very careful and mindful in passing such order.
Novertis Foundation for Sustainable Development Vs. R. K Ruma & Ors 8BLT
(AD)-213
Judicial Mind in respect of conduct or action by the Court
One Meher Chand claiming himself to be the brother-in-law of Mrs. Umme
Salma (Suma Chatterjee) filed an application under Section 491 of the Code
of Criminal Procedure. Criminal Miscellaneous Case No. 5382 of 1998,
claiming Custody of the victim girl. The appellant was not made a party in
the said M/Sc. Case but upon an application filed by him he was permitted
to assist the State lawyer at the time of hearing of the Rule. When the
matter came up for hearing, no one appeared for the petitioner of the M/Sc.
Case. It is alleged by the appellant that the learned Advocate for him,
however, appeared and prayed for adjournment of the hearing on the ground
that an appeal was pending before this Division against the order
discharging the Rule in Criminal Miscellaneous Case No. 4342 of 1997 filed
by the appellant and further that it was found by the High Court Division
itself in that case that the present detention of Suma Chatterjee could be
said to be illegal as she was being detained by virtue of the order of the
Appellate Division —As already noticed, the aforesaid M/Sc. Case was
filed by one Meher Chand Claiming himself to be the brother-in-law of the
victim girl and seeking her custody. At the hearing of the said M/Se. Case
no one appeared for Meher Chand, but even then the learned Judge took up
the matter for consideration which is to say the least, quiet
extraordinary. The ‘earned Judges were not sitting in appeal or revision
as would entitle them to proceed with the matter even in the absence of the
parties. In the instant case, the High Court Division was exercising a kind
of original jurisdiction was exercising a kind of original jurisdiction
i.e. under Section 491 Cr.P.C. The only course open to the learned Judges
was to dismiss the M/Sc. Case for default of the petitioner. But that was
not done which was quite improper. Furthermore, the appellant has alleged
that a prayer for adjournment was a made on behalf of the appellant, inter
alia, on the ground that the same Bench in the case filed by the appellant
for the custody of the victim girl had dismissed the same finding that the
girl being in judicial custody as per the direction of the Appellant
Division, it could not be said that her present detention before this
Division. The judgment (by itself) was before the Court which was annexed
to the application filed by the said Meher Chand Having acted in such
manner the learned Judges have not only shown disrespect to this Division
but manifested a regrettable attitude of throwing norms and procure to the
winds. This does not enhance the prestige of the learned Judges nor of this
Court. We are very sorry to observe that we have had occasion before to
record our dissatisfaction about the manner in which the learned Senior
Judge had been disposing of some cases with the hope that the path or
correction and rectitude may be followed, but it seems that it has all been
water on ducks back. We are afraid we may have to address ourselves with
more effectiveness in future if it is so required.
Bashu Dev Chatterjee Vs. Mrs. Umme Salma &Anr. 8BLT(AD)-168
Judicial Mind in respect of human consideration
It has been very persistently submitted on behalf of the accused-petitioner
that he is an old man of above 64 years of age suffering from various
ailments and due to his long detention in jail his health condition
deteriorated so much so that he had to be shifted to NICVD for treatment
there and he is still there and he had severe chest pain associated with
breathlessness, having high blood pressure and irregular pulse and has now
developed severe congestive Cardiac failure for which heart was unable to
maintain adequate cardiac output to meet peripheral oxygen demand and
nutrition and that eco-cardiograph test being conducted on him on
27.11.2000 indicated enlargement of heart, myocardial infarction and left
ventricular failure and that now his ejection fraction is only 28% against
required minimum of 60%—in this juncture of hours of death and life of
the petitioner it is necessary for his relations to meet him and stay
beside his bed for taking his care and nursing him, when his life is in
fact at stake due to seriousness of his illness.
Held: We are of the view that at this stage of health of the
accused-petitioner, at least his wife, who is said to be a renowned
physician, may be allowed to meet, visit and stay with her ailing husband,
the accused-petitioner during his stay in the hospital. In such view of the
matter, we direct that Dr. Sufia Begum, wife of the accused-petitioner
Nurul Islam Monzoor, be allowed to meet and visit the accused- petitioner
Nurul Islam Monzoor and attend and stay beside his bed, during his stay in
NICVD.
Nurul Islam Monzoor Vs. The State & Ors. 9BLT(HCD)-57
On a careful examination of record of appeal it does not at all appear that
Respondent No.2 appellant did even enter any appearance by any Vokalatnama
or in any other way. The decision rendered by learned Subordinate Judge
that appeal stood allowed on contest against respondent No.2 suffers from
patent illegality perversity and flagrant error of law. Learned Subordinate
Judge did not at all apply his mind and did not also examine record. This
type of carelessness on the part of Subordinate Judge is unfortunate.
Hosne Ara Jalil Vs. Abdur Rob & Ors. 9BLT(HCD)-81
Regarding Minds “স্বাস্থ্য খারাপ
থাকার দরুন”- it appears that in passing the impugned
judgment and order the learned Assistant Judge has not properly appreciated
the facts’ of the case as well as the law applicable to it. He has gone
wrong with his reasoning as well. The Title Suit No.49/1986 was fixed for
hearing on 1.8.90. On that day the petitioner moved 2 applications for
adjournment of the hearing before the learned Assistant Judge. So the
petitioner was not ill and the learned Assistant Judge was right to
conclude so, but he was wrong in his thinking that the petitioner claimed
that he was ill. The petitioner, in fact made no such claim in his
petition. Nor did he express his inability, on the ground of his alleged
illness, to conduct the hearing of the suit question. All that was said in
his applications for an adjournment was that the petitioner on the previous
evening had returned home very late in the evening not until 8 P.M. and he
could not prepare the case as he was unwell. The words used by him in his
application are, “স্বাস্থ্য খারাপ
থাকার দরুন” and by using these words the petitioner was
not claiming that he was ill to attend the court or to conduct hearing. The
words have been linked with the task of preparation of the case and are
preceded by the words “গতকাল রাত্র ০৮:০০
ঘটিকার সময় বাসায় পৌছিয়া”.It may
mind, the petitioner by using words, “স্বাস্থ্য
খারাপ থাকার দরুন” was not claiming to be
suffering from any illness. He was simply saying that as he had returned
home late at 8 P.M. on the previous evening he was then too exhausted to
undertake further work and prepare the case for hearing on the following
day. The learned Assistant Judge in the impugned judgment and order said,
to borrow his words “বিজ্ঞ আইনজীবী
ধার্য তারিখে অসুস্থ ছিলেন।
এটি প্রমানিত হয় নাই। যেমন
তাহার অসুস্থতার স্বপক্ষে
কোন এমসি দাখিল হয় নাই।” the learned
Assistant Judge, it seems that he was under the impression that the
petitioner had claimed to be ill in on the day of the hearing of the suit
and adjournment of the hearing was sought on the ground of such illness.
But this is not borne out by the records as disclosed in the adjournment
applications, Annexure “A” and “A1” to the instant Civil Revision.
From the tenor of the impugned judgment and order it seems that the learned
Assistant Judge condemned the petitioner as a hero and a cheat, but the
facts and materials on record do not warrant such a condemnation.
Furthermore, the passage of the judgment to which the petitioner has taken
objection was not necessary for the determination of the learned Senior
Assistant Judge.
Bibhu Ranjan Das Vs. Hakim Ali & Ors. 9BLT(HCD)-99.
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