Gujarat High Court
Manojkumar Kalpeshvar Yadav vs State Of Gujarat on 25 September, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/21554/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 21554 of 2017
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MANOJKUMAR KALPESHVAR YADAV....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR HARSHIT S TOLIA, ADVOCATE for the Applicant(s) No. 1
MR PARTH S TOLIA, ADVOCATE for the Applicant(s) No. 1
MS SS PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 25/09/2017
ORAL ORDER
1. This is an application for regular bail under Section 439 of the Code of Criminal Procedure preferred by the applicant prior to the filing of the charge sheet in connection with FIR being C.R. No.I-6 of 2017 registered with Valsad Dang ACB Police Station, District Valsad for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
2. It is the case of the prosecution that the applicant is working as Class-II Medical Officer at Community Health Central (CHC), Bhilad at Valsad and for a particular day, he was in-charge at Referral Hospital, Chala at Vapi. A labourer in the complainant company has suffered massive heart attack and hence admitted in the hospital and he succumbed to the heart attack and therefore, before his body was flown to his Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Oct 01 15:34:12 IST 2017 R/CR.MA/21554/2017 ORDER native, postmortem was must. His dead body was taken to Primary Health Center (PHC), Chala. Present applicant was present there and he was requested to perform postmortem at night hours as flight going to Mumbai was in the night hours. The applicant demanded illegal gratification of Rs.10,000/-, 50% of which was paid there and remaining 50% was promised to be given after postmortem. On the death certificate, no objection certificate was to be issued by the doctor and registration number of the doctor and seal of the hospital was required and for want of the same, the Airport Authority did not allow dead body to be flown. After he was given remaining amount, the certificate has been stamped and signed.
3. Mr. H. S. Tolia, learned advocate appearing for the applicant has urged that maximum punishment prescribed under the law is of seven years and therefore, this Court may grant regular bail to the present applicant whose custodial interrogation is also over and all investigation have been concluded and he has been falsely involved in the crime in question. He has been working for about 17 years in the State of Gujarat as Class-II Medical Officer. He has further urged that postmortem was performed by him on humanitarian ground at night hours and trap was well planned and well arranged. He has further urged that the applicant has three minor children and wife and there are no chance of tempering with the evidence and, therefore, by imposing strict conditions, the applicant may be granted regular bail.
4. Learned Additional Public Prosecutor objected grant of Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Oct 01 15:34:12 IST 2017 R/CR.MA/21554/2017 ORDER regular bail mainly on two grounds i.e. 1) maximum punishment prescribed under the law is now ten years and not seven years and 2) there are two tests which are yet to be performed i.e. SDS and LDA. It is further urged that he has agreed to give his voice sample and these supplementary tests are require to be done. Further, FSL, Gandhinagar has given dates for the same in the Month of October being October, 23 of 2017 and October, 25 of 2017. According to learned APP, investigation is going on and last date of submission of charge sheet is 29/010/2017 and, therefore, no discretion should be exercised in favour of the applicant.
5. Reliance is also placed in the case of Sudhir Chaudhary and others vs State (NCT of Delhi) reported in (2016) 8 SCC 307.
6. It is not disputed that this Court, in case of Natwarlal Amarshibhai Devani vs State of Gujarat and Another reported in 2017 (1) GLH 576, has held that every test does not fall within the ambit of psychiatric treatment and in absence of any specific provision empowering the Police Officer or the court of law, it is not permissible to subject an accused to the Voice Spectrographic Test. The Voice sample is not covered within the definition of term "measurement" under Section 2 of the Act of 1920. The voice sample also does not fall within the term "examination" or "such other test" as explained in Section 53 of the Code. Section 73 of the Evidence Act also does not empower to direct an accused to give his voice sample as an instrument or a device to be used for the advancement of any party either the prosecution or the accused. Similarly, the expression "may order the production Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Oct 01 15:34:12 IST 2017 R/CR.MA/21554/2017 ORDER of any document of thing" used under Section 165 of the Evidence Act by no stretch of imagination can be construed as one conferring power upon a Judge to ask the accused to give his voice sample.
7. However, the voice test since has been permitted by the applicant-accused, this Court is only required to consider decision in the case of Sudhir Chaudhary (supra) as both the tests namely SDS and LDA as submitted by learned Public Prosecutor with learned APP are complementary to the test of voice spectrography. The Investigating Officer has already taken appointment of the concerned authority for recording this test in the month of October, 2017.
8. At this stage, this Court is concerned with the grant of regular bail to the present applicant whose custodial interrogation is also over and investigation as is disputed is clearly over, barring these two tests which are now scheduled in the month of October. The applicant was having 17 years of service as Class-II Medical Officer and is permanent resident of State of Gujarat, there is no possibility of tempering with the evidence and therefore, with certain stringent conditions, the applicant is required to be granted regular bail.
9. Accordingly, this application is allowed and applicant is ordered to be released on bail in connection with CR No.I-6 of 2017 registered with Valsad Dang Police Station, Valsad, on furnishing two local solvent sureties of Rs.30,000/- (Rupees Thirty Thousand only) with two local solvent sureties of the like amount to the satisfaction of the trial Court and subject to Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Oct 01 15:34:12 IST 2017 R/CR.MA/21554/2017 ORDER the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) not leave Gujarat without prior permission of the Sessions Judge concerned;
(e) mark presence before the concerned police station on every 1st of every English Calender month between 11.00 a.m. and 2.00 p.m. till framing of charges;
(f) furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
(g) remain present when called for the above mentioned tests and if the dates of tests are prepond at the behest of the Investigating Officer by the FSL, the same shall be communicated to the applicant on the phone numbers being (1) 95678 73854, (2) 7984666143, (3) 9054072774, (4) 9725715347 of Dr. Prakash Singh and (5) 9427576380 of Shri Avdeh Misra. Even the text message or message by whats-app to any number is permitted and no notice for the same is required.
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R/CR.MA/21554/2017 ORDER
(h) shall not enter Valsad and Navsari except for the
presence of marking presence and for attending trial.
10. If the applicant is found indulged in second offence, while trial is going on, the prosecution is at liberty to approach this Court for cancellation of bail. The applicant is not permitted to contact the accused who is enlarged at any point of time. Any call details found qua contact with another accused shall be considered breach of conditions and for the same, concerned authority is at liberty take necessary actions.
11. The Authorities will release the applicant only if not required in connection with any other offence for the time being.
12. If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate action in the matter, including cancellation of bail.
13. Bail bond to be executed before the lower court having jurisdiction to try the case.
14. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
15. Rule is made absolute to the aforesaid extent. Direct service is permitted.
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