Judicial Mind

 Judicial Mind


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

Judicial Mind

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

Judicial Mind

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.