Gujarat High Court
Khimjibhai Merambhai Gabu vs State Of Gujarat on 4 February, 2014
Author: Anant S. Dave
Bench: Anant S. Dave
R/CR.MA/1330/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 1330 of
2014
================================================================
KHIMJIBHAI MERAMBHAI GABU....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
================================================================
Appearance:
MR ND NANAVATY, Ld. SENIOR COUNSEL with MR RAJESH O GIDIYA,
ADVOCATE for the Applicant(s) No. 1
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1
MR KP RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 04/02/2014
ORAL ORDER
1. This application is filed under Section 438 of the Code of Criminal Procedure in connection with First Information Report registered as M. Case No.1/2013 with Botad Police Station, Botad for the offences punishable under Sections 304(A), 465, 467, 470, 471, 474 and 114 of the Indian Penal Code.
2. Learned Senior Counsel for the applicant submits that the applicant is a M.D. (Gynecologist), a registered practitioner and a member of Indian Medical Association having a practice in the very Page 1 of 6 R/CR.MA/1330/2014 ORDER field since the last 15 years. It is submitted that in a unfortunate incident for which the applicant is sought to be arrested, all possible precautions were taken and arrest of the applicant is by no means inevitable by which the investigation of the case can be carried out. The applicant has no criminal antecedents, is available for investigation and is ready to co- operate with the investigation.
Learned Senior Counsel has relied on the following decisions :-
(a) Decision of the Bombay High Court (Aurangabad Bench) in the case of Dr. Saroja Dharmapal Patil v. State of Maharashtra & Anr. reported in 2011 CRI. L.J. 1060;
(b) Decision of the Hon'ble Supreme Court in the case of A.S.V. Narayanan Rao v. Ratnamala and Another reported in (2013) 10 SCC 741; and
(c) Decision of the Hon'ble Supreme Court in the case of V. Kishan Rao v. Nikhil Super Seciality Hospital and Another reported in (2010) 5 SCC 513.
The very aspect about negligence of a registered, qualified Medical practitioner vis-a-viz Section 304(A) of the Indian Penal Code and the guidelines laid down therein have been considered in the above decisions.
In view of the above, it is submitted that the applicant may be granted anticipatory bail.
Page 2 of 6R/CR.MA/1330/2014 ORDER 3. Heard learned APP Mr. K.P. Raval for the respondent-State, who opposes grant of
anticipatory bail on the ground that the applicant has failed to perform his duties as a gynecologist and handed over the task to the nurses who had performed the initial cut on the patient. This resulted into profuse bleeding which led to the damage of the kidneys of the patient, who was later on shifted to a Kidney Hospital which confirmed the damage to the kidney/s. Accordingly, the application for grant of anticipatory bail be refused.
4. Upon consideration of overall facts and circumstances of the case and also relying on the various decisions as stated above and applicability of Section 304(A) of the Indian Penal Code in a case of alleged medical negligence qua a qualified, registered Medical practitioner like the applicant herein, the concept of negligence based on the decision in the case of Dr. Saroja Dharmapal Patil (supra) was confirmed by the Apex Court. In view of the above, coupled with the opinion of Medical experts, I am inclined to grant anticipatory bail to the applicant.
5. This Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Stalingappa Mhetre v. State of Maharashtra & Ors. reported in [2011]1 SCC 694, wherein the Apex Court reiterated the law laid down by the Constitutional Bench in the case of Page 3 of 6 R/CR.MA/1330/2014 ORDER Shri Gurubaksh Singh Sibbia & Ors. reported in [1980]2 SCC 565.
6. Learned Counsels for the parties do not press for further reasoned order.
7. In the result, this application is allowed by directing that in the event of the applicant herein being arrested pursuant to FIR being M. Case No.1/2013 with Botad Police Station, Botad, the applicant shall be released on bail on furnishing a bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) with one surety of like amount on following conditions :-
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 10th FEBRUARY, 2014 between 11.00 am to 2.00 pm;
(c) shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer;
(d) shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;
(e) will not leave India without the permission Page 4 of 6 R/CR.MA/1330/2014 ORDER of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately;
(f) It would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate would decide it on merits.
(g) despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such an 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 applicant, 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. Rule made absolute. The application is disposed of accordingly.
9. Direct Service is permitted.
Page 5 of 6R/CR.MA/1330/2014 ORDER
10.Before parting with the order, it is made clear that the observations made herein by this Court will not come in the way of the complainant in undertaking any proceedings in furtherance of the case before any Court / Forum etc. Sd/-
(ANANT S. DAVE, J.) CAROLINE Page 6 of 6