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Abhishek Vasisth @ Abhi Sharma @ Abhinav ... vs State & Anr on 23 February, 2023

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~54

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      BAIL APPLN. 2289/2022

                                 ABHISHEK VASISTH @ ABHI SHARMA @ ABHINAV
                                 SHARMA                                ..... Petitioner

                                                    Through:     Mr. Anup Kumar Das with Mr.
                                                                 Hemant Singh and Mr. Sunil Tiwari
                                                                 Advocates.
                                                    versus
                                 STATE & ANR.                                         ..... Respondents

                                                    Through:     Mr. Shoaib Haider, APP for the State
                                                                 with W/SI Alka Sharma, P.S.:
                                                                 Barakhamba Road.
                                                                 Mr. Jaspreet Singh, Advocate for R-2
                                                                 with R-2 via video conferencing.

                                 CORAM:
                                 HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                    ORDER

% 23.02.2023 By way of the present petition filed under section 439 read with section 482 of the Code of Criminal Procedure 1973, the petitioner seeks interim bail for a period of sixty days on medical grounds in case FIR No. 81/2018 dated 16.03.2018 registered under sections 323/376/377/406/420/467/498A/468/506/509 of the Indian Penal Code at P.S.: Barakhambha Road.

2. Learned counsel for the petitioner submits that in compliance of order dated 06.02.2023, the petitioner was taken to set-up a schedule for Signature Not Verified Digitally Signed By:NEERAJ Signing Date:24.02.2023 BAIL APPLN. 2289/2022 Page 1 of 6 17:17:55 admission to the Max Healthcare Hospital, Gurugram for spinal surgery but only on 20.02.2023. Upon examination and review, the attending doctor has issued prescription dated 20.02.2023, setting-out the following schedule for the surgery:

"Admission: 27/02/23.

Investigation &Fitness: 27-28 Feb.

Surgery: 1/3/23.

Postoperative care: 1-8/3/23 Physiotherapy (in the hospital): 8-23/3/23 (optional) Discharge: 23.02.2023."

3. Mr. Shoaib Haider, learned APP appearing for the State has handed-

up a copy of status report dated 22.02.2023, which states that they have verified the prescription and that the doctor has confirmed what is stated in the doctor's prescription dated 20.02.2023. The status reported is stated to have been filed. Let the same be placed on record.

4. As recorded in order dated 06.02.2023, though the petitioner had sought release on interim bail for conducting abdominoplasty, thighplasty and liposuction surgery, by way of an earlier medical report dated 02.02.2023, the doctors at Max Hospital, Gurugram had declared that the petitioner is not a fit candidate for either of those surgeries; opining however that the petitioner requires deep compression and fusion surgery with coccygectomy for degenerative lumbar spine.

5. It seems clear that though the medical evaluation and review has been conducted in-custody, the surgery advised cannot be conducted in the jail hospital or in-custody. The petitioner has sought permission to Signature Not Verified Digitally Signed By:NEERAJ Signing Date:24.02.2023 BAIL APPLN. 2289/2022 Page 2 of 6 17:17:55 have the surgery conducted at Max Hospital, at his own cost and expense.

6. Mr. Haider submits that that the State leaves it to the court to pass appropriate orders in the matter.

7. The prosecutrix/respondent No. 2 and her mother have joined via video-conferencing and have been heard. They oppose the grant of interim bail even for purposes of surgery; and have repeatedly only emphasised how the petitioner has wronged them and expressed apprehension that the petitioner would abscond if released on interim bail.

8. The court also wishes to record that vide e-mails inter-alia dated 14.02.2023 sent to the e-mail ID of the Court Master of this court (meant only for sending adjournment slips), the prosecutrix has sent scathing, vitriolic and abusive e-mails addressed to persons at various echelons of the judicial system. The completely gratuitous and uncalled-for comments in those e-mails are noticed; and ignored.

9. Considering the prayer made in the petition, and the fact that surgery evidently cannot be performed in-custody, or at the jail hospital; and that the petitioner has produced a medical certificate from a credible medical institution, all of which has also been verified by the State, the present petition is allowed, granting to the petitioner interim bail only for the period from 27.02.2023 to 10.03.2023, making it clear that the post-operative physiotherapy shall be conducted in the jail hospital as per medical advice as may be given by the attending doctor at Max Hospital, and subject strictly to the following conditions:

9.1. The petitioner shall furnish a personal bond in the sum of Rs.1,00,000/- (Rs. One Lac Only) with 02 sureties in the like amount, one from a family member, and the second from a local surety within Delhi, to the satisfaction of the Jail Superintendent;

9.2. The Investigating Officer shall visit the hospital where the petitioner is admitted every third day to verify his presence; 9.3. The petitioner shall be released from prison in the morning of 27.02.2023 and shall be escorted by the police directly to Max Hospital, Gurugram on 27.02.2023; and shall not leave the premises of Max Hospital, Gurugram without leave of this court, except to surrender back to jail. If there is any change in the schedule of surgery or discharge, he shall given prior information to the Investigating Officer in writing; 9.4. The petitioner shall furnish to the Investigating Officer/S.H.O P.S.: Barakhamba Road a cell-phone number on which the petitioner may be contacted at any time and shall ensure that the number is kept active and switched-on at all times; 9.5. The petitioner shall share his real-time/live-location on Google Maps or on WhatsApp with the Investigating Officer and shall keep that setting 'on' at all times during the period of interim bail, so that the I.O. may be able to verify the petitioner's location, at any time;

9.6. If the petitioner has a passport, he shall surrender the same to the Jail Superintendent and shall not travel out of the country without prior permission of this court;

9.7. The petitioner shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of case; 9.8. The petitioner shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial. More specifically, the petitioner shall neither contact nor interact, whether directly or indirectly, with the complainant/prosecutrix or her family, in any manner whatsoever;

9.9. A copy of this order be sent to the Director of Max Hospital, Gurugram, for his attention and to ensure that the petitioner does not leave the hospital without permission of this court; 9.10. Furthermore, as suggested by learned APP, a copy of this order be also sent to the S.H.O. of the Police Station having jurisdiction over Max Hospital, Gurugram, bringing to the SHO's notice the contents of this order, in particular the fact that the petitioner has been restrained from leaving the hospital without the prior permission of this court, except to surrender back to jail.

10. Upon expiry of the period of interim bail, the petitioner shall surrender before the Jail Superintendent.

11. The petitioner shall furnish to the Investigating Officer copies of the discharge summary received by him from hospital, at the time of surrender.

12. Let a copy of this order be sent to the concerned Jail Superintendent for information and compliance forthwith.

13. Petition stands disposed-of.

14. Pending applications, if any, also stand disposed-of.

ANUP JAIRAM BHAMBHANI, J FEBRUARY 23, 2023 ds Signature Not Verified Digitally Signed By:NEERAJ Signing Date:24.02.2023 BAIL APPLN. 2289/2022 Page 6 of 6 17:17:55