Madhya Pradesh High Court
Mahendra Soni vs The State Of Madhya Pradesh on 19 October, 2020
Author: Shailendra Shukla
Bench: Shailendra Shukla
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. No.34787 of 2020
(Mahendra Soni vs. State of MP)
Indore, dated : 19.10.2020
Shri S. K. Vyas, learned Senior counsel with Shri Anirudh
Gokhale, Advocate for the applicant.
Ms. Archana Kher, learned Public Prosecutor for the non-
applicant - State.
Documents dated 14.10.2020 have been submitted but their hard
copies are not placed on record although the documents have been sent
through e-mail. Learned Public Prosecutor for the State has submitted
that as per these documents, the applicant had suffered from cancer in
the year 2017 and at present, he is not being given any medicine for the
same and he is not suffering from cancer as of now. The aforesaid
documents shall have to be perused.
Learned Senior Counsel for the applicant submits that way back
in 2017 while his treatment was going on he was advised to go for PET
scan at Kokila Ben Hospital at Mumbai. The aforesaid document is
placed on record and is dated 10.02.2020. However, the PET
examination could not be conducted. He submits that apart from PET
scan examination, the histo-pathalogy, biopsy and other radiological
examination needs to be conducted, so that it may be ascertained that
the cancer has not resurfaced. This aspect shall be considered after
thoroughly perusing various documents on record and final order shall
be passed on interim bail application thereafter.
Order to follow.
(Shailendra Shukla)
Judge
ss
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. No.34787 of 2020
(Mahendra Soni vs. State of MP)
Later on :
This order disposes of second application for grant of temporary
bail filed by the applicant under Section 439 of Cr.P.C. who has been
implicated in Crime No.496/2019 registered at Police Station Palasia,
Indore for the offence punishable under Sections 370(2), 370(3), 370(a)
(2), 346, 201, 120-B and 34 of IPC along with Sections 3, 4, 6, 7 of
PITA and 22/38 of M. P. Excise Act.
His first bail application was dismissed by this Court vide order
dated 11.08.2020 passed in MCRC No.22889/2020.
This temporary bail application has been filed on the ground that
applicant is required to conduct rituals of his mother (Asthi Visarjan)
who had expired on 04.09.2020. It is submitted that other brothers of
the applicant are also in jail and therefore, prayer has been made for
grant of temporary bail. Another ground for grant of temporary bail is
that the applicant is a cancer patient for which treatment has to be
carried out. However, when the applicant met his family members,
medical condition of the applicant had deteriorated considerably hence,
it is the apprehension of the family members that cancer might have
relapsed and it is prayed that all the tests be carried out to ensure that
applicant does not suffer from critical illness and on these grounds,
temporary bail has been sought.
Learned Public Prosecutor for the State has strongly opposed the
application submitting that even when the mother of applicant had
expired, the benefit of bail was not afforded to him and applicant
attended the last rites of his mother in police custody.
Regarding the fear expressed by the applicant that his cancer may
have relapsed, learned Senior Counsel for the applicant has submitted
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. No.34787 of 2020
(Mahendra Soni vs. State of MP)
that this Court vide order dated 22.09.2020, while considering the same
temporary bail application had called for the health status report from
the jail authorities and an enquiry was made as to the treatment
afforded to the applicant at present and whether the aforesaid treatment
is adequate or not.
Learned Public Prosecutor has submitted that in compliance of
the directions, applicant was taken to Government Cancer Hospital,
Indore where a panel of three doctors examined him and after clinical
examination and examination through microscope of ear, nose and
throat, no symptoms of cancer were perceptible.
This application was first considered on 22.09.2020 and health
status report of the applicant was called for. The health status report
dated 26.09.2020 was considered in which it has been mentioned that
applicant was subjected to clinical examination and ear, nose and throat
examination through microscope but symptoms of cancer are not
reflected in it. The aforesaid certificate was sent by three doctors of
Government Cancer Hospital.
Learned Senior Counsel for the applicant has submitted that the
aforesaid examination is not adequate and does not give accurate
diagnosis. At that point of time, this Court had observed that applicant
has been receiving treatment from Government Cancer Hospital and
hence it was considered appropriate to peruse the kind of treatment
afforded to him.
On perusal of past order-sheets, it transpires that this Court had
observed on 12.10.2020 that there is a report dated 30.09.2020 of the
applicant which is based on CT scan of neck and also after conducting
endoscopy, report shows lesions, which learned Senior Counsel for the
applicant submits that were suggestive abnormalities resulting from
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. No.34787 of 2020
(Mahendra Soni vs. State of MP)
resurfacing of cancer.
In view of this report dated 30.09.2020, this Court further sought
opinion from the Government Cancer Hospital as to what further
diagnostic procedures need to be adopted for determining as to whether
there is resurfacing of cancer or not and whether such facilities are
available at Government Cancer Hospital and if yes, what is the course
of treatment that would be adopted in this matter.
In response to the above queries, learned Public Prosecutor has
submitted document dated 14.10.2020, which has been sent by the
SHO, Police Station Palasia, Indore addressed to the Government
Advocate in which it has been mentioned that an enquiry has been
made from Government Cancer Hospital, Indore as to the report dated
30.09.2020. In the report, it has been mentioned by the authorities of District Cancer Hospital that date 30.09.2020 is a typographical error and the actual date is 30.09.2017 and on the basis of this report dated 30.09.2017 of CHL Apollo Hospital, Indore, applicant had received his treatment from Kokila Ben Hospital, Mumbai. In other report dated 15.10.2020 submitted by the Jail Authorities, District Jail, Indore, it has been stated that applicant has not been sent for any medical examination after 25.09.2020 and also he was not sent to Government Cancer Hospital on 30.09.2020.
Thus, State has submitted that applicant was not taken for any diagnostic procedures on 30.09.2020, which is a typographical error and the diagnostic procedure was infact done on 30.09.2017. In the letter dated 15.10.2020, it has also been mentioned by the jail authorities that applicant was not taken to any hospital on 30.09.2020.
In view of the aforesaid, it becomes clear that no diagnostic procedure was conducted on the applicant on 30.09.2020 instead, it was 5 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. No.34787 of 2020 (Mahendra Soni vs. State of MP) conducted on 30.09.2017. Further an enquiry was made to the SHO, Palasia as to whether applicant is being treated currently by Cancer Hospital, Indore? This was answered by the authorities of Cancer Hospital by stating that presently applicant is not suffering from cancer and report regarding the same has already been given on 26.09.2020. Thus, in the aforesaid report sent by the authorities of District Cancer Hospital, it has been mentioned that applicant is not suffering from cancer at present. It has also been mentioned by a panel of three doctors that applicant was examined on 26.09.2020 and found no abnormalities and symptoms of cancer. The aforesaid report had been submitted after clinical as well as microscopic examination.
Learned Senior Counsel for the applicant further states that actual diagnosis regarding resurfacing of cancer can be obtained only through PET scan, endoscopy and other investigation mechanism only which would reveal as to whether cancer has been resurfaced or not.
As per the report of cancer hospital, applicant is not being given any medication presently and his cancer remains in remission and no abnormality has been found therein by the panel of doctors. These doctors are cancer specialists who are posted at District Cancer Hospital hence, there is no reason to doubt their efficiency and acumen. It appears that in Kokila Ben Hospital, Mumbai, hospital had advised PET scan examination. It was queried from learned Senior Counsel as to whether PET scan of applicant could be conducted at that time or not?
He submits that the police was breathing down heavily on the neck of the applicant. and therefore, he could not get PET scan conducted. However, record shows that applicant was arrested only in the month of June, 2020 and therefore, if he could have got advisory 6 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. No.34787 of 2020 (Mahendra Soni vs. State of MP) from Kokila Ben Hospital, for getting his PET scan conducted in the month of February, 2020, he could have got the same examination conducted there itself because the applicant was arrested only in the month of June, 2020. Presently, applicant is not being presented with any such abnormalities which may signify resurgence of his malady. The applicant is not under medication at present and his cancer is in remission stage hence, at this stage, further diagnostic procedure does not appear necessary to be conducted. The aforesaid diagnostic procedures are available at certain hospitals at Indore also. If in future, same becomes necessitated, the jail authorities may be directed to get such medical procedures conducted in custody from one of such hospitals, if panel of doctors at Cancer Hospital, Indore make such recommendation. As far as ritual of Asthi Visarjan is concerned, same may be conducted in custody just as applicant attended the last rituals of his mother in custody.
In view of the aforesaid, no case is made out for grant of bail to the applicant. The application for temporary bail stands dismissed accordingly.
(Shailendra Shukla) Judge gp Digitally signed by Geeta Pramod Date: 2020.10.21 10:45:26 +05'30'