Court No. - 59
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5727 of 2018 Applicant :- Dr. Kafeel Ahmad Khan Opposite Party :- State Of U.P.
Counsel for Applicant :- Nazrul Islam Jafri,Sadaful Islam Jafri Counsel for Opposite Party :- G.A.,Vimlendu Tripathi
Hon'ble Yashwant Varma,J.
Heard Sri N.I. Jafri, the learned counsel for applicant and Sri Vimlendu Tripathi, the learned AGA.
The applicant is charged in Case Crime No. 428 of 2017 under sections 409, 308 and 120-B IPC, Police Station Gulharia District Gorakhpur. The gist of the allegations in the FIR and charge sheet as ultimately filed is that he was while heading the 100 bed Ward in the BRD Medical College negligent in the discharge of his duties resulting in a shortage of medical oxygen. It is also alleged that the applicant and his wife were running a private medical center and indulging in private practice.
Having considered the submissions advanced the Court notes that there is no material on record, which may establish medical negligence against the applicant individually. This quite apart from the fact that no enquiry as mandated in terms of the decision of the Supreme Court in Jacob Mathews [2005 SCC (Cri.) 1369] was also undertaken or initiated. The Court must also bear in mind that the State in its affidavit and more particularly in paragraph 16 thereof does not attribute the deaths to a shortage of medical oxygen.
The Court also notes that the charges under sections 7/13 of the Prevention of Corruption Act, 1988 against the applicant have been dropped in the course of investigation.
The applicant has admittedly been in custody for the last 7 months. Learned AGA states that no aspect of the investigation remains outstanding. This clearly obviates the need for the continued custody of the applicant. The State in its affidavit also does not refer to any evidence which may establish or even tend to indicate that the applicant has tried to influence witnesses or to tamper with the evidence. The applicant admittedly is a medical practitioner, a government employee with no prior criminal history. The Court also takes note of his medical condition as brought on record by way of affidavit.
He was also not stated to be part of the tendering process that resulted in the enlistment of the entity, which was charged with the supply of medical oxygen. The Court additionally notes that the main supplier of medical oxygen, Manish Bhandari, has already been enlarged on bail by the Supreme Court in the following terms: -
“IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 529/2018 (arising out of SLP (Crl.) No. 2511/2018) MANISH BHANDARI Appellant VERSUS STATE OF UTTAR PRADESH Respondents O R D E R Leave granted.
Heard Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant and Ms. Aishwarya Bhati, learned AAG for the Sate of Uttar Pradesh.
Keeping in view the period of custody undergone by the appellant i.e. approximately seven months and also that the maximum sentence prescribed for the offence punishable under Section 406, IPC is three years and further the fact that chargesheet has been filed, we direct that the appellant shall be enlarged on bail, subject to such terms and conditions to be imposed by the learned trial Judge.
The appeal is accordingly allowed.
. CJI [Dipak Misra] . J.
[A.M. Khanwilkar] Signature Not Verified Digitally signed by DEEPAK GUGLANI Date: 2018.04.09 17:10:07 IST . J.
[Dr. D.Y. Chandrachud] New Delhi; April 9, 2018.”
The Court must also bear in mind the principles which must govern the grant of bail as reiterated in the recent decision of the Supreme Court in Dataram Singh Vs. State of Uttar Pradesh [(2018) 3 SCC 88]. On an overall consideration of the aforesaid facts, this Court is of the considered view that the applicant is entitled to bail.
Accordingly let the Applicant, Dr. Kafeel Ahmad Khan, charged in Case Crime No. 428 of 2017 under sections 409, 308 and 120-B IPC, Police Station Gulharia District Gorakhpur be enlarged on bail upon his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to the following additional conditions which stand imposed in the interest of justice:-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against his under Section 229- A of the Indian Penal Code.
(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 25.4.2018 NS