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.
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 thatRespondent 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.