Kiritbhai Gordhanbhai Patel vs State Of Gujarat
2021 Latest Caselaw 452 Guj

       R/CR.MA/18181/2020                                           ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 18181 of 2020
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                     KIRITBHAI GORDHANBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MS MAITHILI MEHTA, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                    Date : 13/01/2021
                      ORAL ORDER

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the petitioner - accused has prayed for anticipatory bail in connection with the FIR being C.R.No.I-53 of 2018 registered with Varnama Police Station, District Vadodara for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 474 and 201 of the Indian Penal Code, mainly on the ground that the petitioner has contracted a terminal disease.

2. Heard Mr. Zubin F. Bharda, learned advocate for the petitioner and Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent - State through video conference.

3. Learned advocate for the petitioner, at the outset, submitted that the petitioner is aged 60 years and has developed a tumor and upon the biopsy of right aryepiglottic fold (larynx) being carried out have been found to be malignant. The petitioner is therefore, advised chemotherapy. It is submitted that the certificate issued by the Doctor dated

R/CR.MA/18181/2020 ORDER

13.1.2021 records that the petitioner is under the treatment of Carcinoma Larynx since 28.9.2020 and is currently on concurrent chemoradiation and which is to continue for approximate six weeks duration. It is further submitted that the petitioner has not only suffered cancer but it has progressed to stage IV which has spread in his body to a considerable extent. Owing to the aforesaid treatment, the health and the physical condition of the petitioner has become very weak and will be unable to undergo the rigors of the custodial interrogation. It is further submitted that the petitioner has no criminal antecedents.

3.1 It is next submitted that all the documents which the investigating officer would need, are already in his possession, as the co-accused Shyamal Upendrabhai Thakar was already interrogated by the investigating officer and was in police custody. On the count of seeking parity it is submitted that the co-accused, who was also co-purchaser of the land, has been enlarged on bail by this court vide oral judgment dated 4.9.2020 passed in R/Criminal Misc. Application No.11317 of 2020.

3.2 It is further submitted that the petitioner will make himself available as and when required by the investigating officer and will also make himself available during the trial and will not flee from justice. Upon instructions, it is stated that the petitioner will remain present before the investigating officer on 22.1.2021 and will provide the permanent address. The learned advocate for the petitioner, on instructions, states that the petitioner is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of the investigating agency to file an application before the

R/CR.MA/18181/2020 ORDER

competent court for remand. It is further submitted that upon filing of such application by the investigating agency, the right of the petitioner-accused to oppose such application on merits may be kept open. It is therefore, submitted that considering the above facts the petitioner may be granted anticipatory bail.

4. On the other hand, Ms. Maithili Mehta, learned Additional Public Prosecutor pursuant to the order dated 8.1.2021, took the instructions and has reported that the petitioner has suffered stage-IV cancer and is undergoing chemotherapy. The aspect of the health condition of the petitioner is not disputed. Accordingly, it is urged that appropriate order may be passed.

5. Having heard the learned advocates for the respective parties and perusing the material placed on record as well as considering the facts and circumstances of the case, nature of allegations, gravity of offences, role attributed to the accused, so also the principle laid down by the Apex Court in the case of Siddharam Sattlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 694, without discussing the evidence in detail, at this stage, I am inclined to grant the anticipatory bail to the application. The court has considered the aspects, viz. (i) the petitioner is aged 60 years and has developed the cancer of Carcinoma Larynx, (Subsite - AE Fold) (Stage IVA=cT3N=M0) and is under treatment and is also required to undergo chemotherapy for a period of approximately six weeks; (ii) the certificate dated 13.1.2020 of Dr. Nirav Asarawala M.D. DM., Consultant-Medical Oncology, M.S. Patel Cancer Centre, Shree Krishna Hospital, Karamsad- 388325 (Gujarat) Reg. No.G-31065; (iii) the co-accused,

R/CR.MA/18181/2020 ORDER

namely, Shyamal Upendrabhai Thakar has been granted bail by this court vide oral judgment dated 4.9.2020 in R/Criminal Misc. Application No.11317 of 2020; (iv) has no criminal antecedents; (v) looking to the health condition of the petitioner, the petitioner is unlikely to flee from justice; and (v) as has been stated at bar that the petitioner will cooperate with the investigation and make himself available for interrogation whenever required.

6. In the result, the present application is allowed. The petitioner is ordered to be released on bail in the event of his arrest in connection with FIR being C.R.No.I-63 of 2018 registered with Varnama Police Station, District Vadodara, on his executing a personal bond of Rs.25,000/- (Twenty-five Thousand only) with one surety of like amount on the following conditions that the petitioner shall;

(a) cooperate with the investigation and make himself available for interrogation whenever required;

(b) remain present at concerned Police Station on 22.1.2021 between 11.00 a.m. And 2.00 p.m.;

(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and not change his residence till the final disposal of the case till further orders;

(f) not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and

R/CR.MA/18181/2020 ORDER

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;

7. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the petitioner. The petitioner shall remain present before the learned Magistrate on the first date of hearing on such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the petitioner, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

8. Needless to say that at the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

9. Rule is made absolute to the aforesaid extent. Registry is directed to communicate this order to the concerned police station through email/ fax, forthwith.

(SANGEETA K. VISHEN,J) BINOY B PILLAI