- (1.) This is a petition by an accused who is being proceeded against under Section 376 I.P.C. in the Fast Track Court No. 2 Padrauna, District Kushi Nagar in S.T. No. 111 of 1999 for setting aside the order dated 6.10.2006, canceling his bail.
(2.) In order to appreciate the facts of the case, it will be appropriate to deproduce the order of the Trial Sessions Judge. That will give a comprehensive picture of what transpired, and what led the Court, to order the cancellation of bail. This is the order:
(3.) One of the grounds in the petition is that the applicant fell ill on the date fixed i.e. 6.10.2006 and was down with diarrhea and vomiting, in which connection a medical certificate has been filed which is Annexure -6 on the record. It is by a Medical Officer Incharge of a Primary Health Centre. It specifies that it is not being used for Medico Legal purposes but it is being used for the same purpose. Medical Certificate in such circumstances obtained with a view to provide an alibi for the appearance in Court particularly when issuance of warrants has been ordered, has to be taken with a pinch of salt. However, irrespective of the question whether Medical Certificate is genuine or not, the fact which is significant is that the lady doctor who had to be examined in the case, was appearing in the Court for the 3rd time and on two previous occasions, her statement could not be recorded because of non-cooperation by the accused and his counsel. It has also to be noticed that even if the accused was absent, his counsel should have realized that the lady doctor was coming 3rd time in the case and he could have cross-examined her even if the accused was absent because no question of fact were likely to be put to the lady doctor, for which any advice or consultation with the client may be necessary, and the question had to be mainly of the forensic nature and the counsel could, therefore, conduct the cross-examination, even in the absence of the accused. That provides sufficient ground for cancellation of bail, because it appear that the Advocate representing the accused is not prepared to do anything in his absence and to ensure the presence of the accused-applicant, in these circumstances, it is necessary that the accused should be lodged in fail till the decision of the Case so that such occasions may not arise in future, and witnesses may not be returned un-examined and the trial may not be delayed.;