Allahabad High Court
Mr. Mukeshkhurana vs State Of U.P. on 21 June, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46627 of 2020 Applicant :- Mr. Mukesh khurana Opposite Party :- State of U.P. Counsel for Applicant :- Alok Kumar,Akshay Mohiley,Arvind Kumar Singh,Prakash Singh,Shivam Yadav Counsel for Opposite Party :- G.A.,Ajay Kumar Shukla,Bhavisya Sharma,Katyayini,Mohammad Sufiyan,Prabha Shanker Mishra,Saurabh Yadav,Ziya Uddin Hon'ble Om Prakash-VII,J.
Order on Criminal Misc. Short Term Bail Application / Interim Bail Application Heard Ms. Rebecca John, learned senior counsel assisted by Sri Shivam Yadav, Sri Alok Kumar, Sri Vishal Gosain and Sri Akshay Mohiley, learned counsel for the applicant and Sri M.C. Chaturvedi, learned Additional Advocate General assisted by Sri I.P.S. Rajpoot, learned A.G.A. for the State as well as Sri Dilip Kumar, learned senior counsel assisted by Ms. Sanghvi Shukla and Sri Rajat Gupta as well as Sri Mudit Jain, learned counsel for the intervener through virtual mode.
Despite link sent to other counsel appearing in this matter for the parties, they did not appear for hearing through video conferencing.
Applicant has moved the present application seeking short term bail in case crime no.726 of 2020 under Sections 420, 406, 467, 468, 471 IPC, Police Station Phase 3, Sector-71, District Gautam Budh Nagar.
Application is being decided at this stage after hearing the parties present in view of the specific direction given by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.3989 of 2021, Mukesh Khurana Versus State of Uttar Pradesh, vide order dated 15.6.2021.
Ms. John, learned senior advocate appearing for the applicant, referring to the short term bail application moved on behalf of the applicant, argued that applicant had suffered a heart attack. Due to that reason, concerned jail authorities sent the applicant for treatment to Safdarjung Hospital, New Delhi where he got treatment for many days and thereafter he was again shifted to jail. Referring to the documents annexed with the short term bail application, it is next contended that there is a clear report on part of the jail doctor as well as doctor conducting the treatment of the applicant at Safdarjung Hospital that applicant's blood pressure is continuously maintained on higher side. Trop-T Test was also conducted during treatment and same was found positive, which clearly indicates that applicant is at risk of suffering from a heart attack again at any point of time. Learned senior counsel has also referred to annexure no.1 to the short term bail application and further argued that the jail doctor has clearly opined in his recommendation dated 19.5.2021 that blood pressure of the applicant is always on higher side and he has also suffered heart attack on previous occasion, therefore, doctor concerned has noted that there is chance that applicant could again suffer from heart attack in near future. To substantiate the prayer made in the short term bail application, learned senior counsel has also referred to the prescription annexed with the short term bail application and argued that Sessions Judge has wrongly rejected the prayer made by the applicant for release him on interim bail. Thus, referring to the entire documents as well as medical prescription, learned senior counsel further argued that co-accused Gautam Mehra has been allowed on interim bail by the lower court itself. Applicant is suffering from serious ailments, he was also tested Covid positive, proper treatment is not available to the applicant in the jail, thus prayer was made to allow the short term bail application.
Sri Dilip Kumar, learned senior counsel appearing for the intervenor argued that documents annexed with the application do not show that applicant had suffered any heart attack at any point of time. Finding of Trop-T Test positive is not conclusive that applicant is suffering from heart disease or he had suffered heart attack at any point of time. Sessions Judge has rightly disposed of the application. Interim bail application has not been rejected. Certain directions have been given to the jail authorities in case need arises for treatment of the applicant. No prescription report in support of treatment given to the applicant on second occasion at Sufdarjung Hospital has been filed. Certain documents relating to the treatment have also been suppressed and same have not been filed with this short term bail application. Referring to the documents annexed with the application, it was next contended that order passed by the Sessions Judge on the interim bail application itself reveals that on the day of passing of the order, applicant was not suffering from any serious disease and due to that reason interim bail application was disposed of. Ground taken for interim bail is not supported with medical evidence. Positive report of the Trop-T Test may be for some other reasons like kidney disease etc., but on this basis, it cannot be presumed that applicant was suffering from the heart disease. Applicant has approached the Hon'ble Supreme Court directly for interim bail. He has not applied earlier before this Court for interim bail. Applicant was discharged from the hospital after getting cured. Opinion expressed by the doctor concerned regarding positive report of Trop-T Test can also not be a ground to allow the short term bail application. It is next contended that when applicant was firstly referred for treatment to Safdarjung Hospital, respondent - the intervenor filed a criminal writ petition no.1766 of 2021 and that petition is still pending. Direction was given to the State to seek instructions. Jail authorities were not competent to refer the accused-person directly for treatment without obtaining permission from the court concerned. Learned senior counsel has also referred to the documents annexed with the second supplementary affidavit filed on behalf of the applicant's side and next argued that documents annexed with it also do not show a clear indication of heart attack. Expert opinion is only an apprehension and advise, therefore, on this ground also applicant is not entitled to be released on interim bail. Some important documents like test reports have not been filed before the Court along with the interim bail application and same have been suppressed, therefore, presumption against the applicant under the Evidence Act will be drawn. It is further argued that for the sake of argument, if Trop-T Test Report is also taken into consideration, then also it is a mild indication of heart disease. It does not reflect that applicant had suffered heart attack at any point of time. Applicant got treatment in Safdarjung Hospital on the basis of false ground. ECG Report and other Test Reports also do not show that applicant suffered heart attack. Applicant is hale and healthy and has suppressed the material documents before the Court, therefore, he is not liable to be allowed on interim bail. In support of his arguments, learned counsel has also placed reliance on the decisions passed in following cases :
1. Misc. Application No.9728 of 2021, order dated 12.3.2021 passed by Allahabad High Court, Lucknow Bench.
2. Criminal Misc. Case 112 of 2021, Himanshu Dabas Versus State Govt. of NCT of Delhi & Another, order dated 5.4.2021 (Delhi High Court)
3. Criminal Appeal No.686 of 2020, State of U.P. Versus Gayatri Prasad Prajapati, order dated 15.10.2020 (Supreme Court of India) Sri Mudit Jain, learned counsel for the intervenor also argued that copy of the SLP and counter affidavit filed before the Hon'ble Supreme Court in the aforesaid SLP have not been brought on record. Thus there is suppression of material documents. Applicant cannot claim parity with the accused already released on interim bail, as role assigned to the present applicant is entirely distinguishable with the role of co-accused. Applicant is the main accused.
Sri Chaturvedi, learned Additional Advocate General appearing for the State, supporting the arguments advanced by Sri Dilip Kumar, learned senior counsel, argued that stand taken by the State before the Hon'ble Supreme Court against the applicant in the interim bail application has not been brought on record. Whatever direction was given by the trial court for treatment, State is taking care and proper treatment is being provided to the applicant, even applicant was earlier referred for treatment to Safdarjung Hospital, thus he argued that applicant is hale and hearty. Prayer made for interim bail application is not liable to be allowed.
Learned Senior Counsel appearing for the applicant rebutting the arguments advanced on behalf of the respondents - intervenors argued that Safdarjung Hospital is a Central Government Hospital. Documents prepared in the Hospital were prepared by the Authority concerned. Same cannot be doubted. Jail authority, even the trial court order itself reveals that applicant had suffered heart attack and due to that reason, he was under treatment twice for many days. Referring to the order dated 4.6.2021 passed in SLP (Crl.) No.3989 of 2021, it is further argued that notice was issued in the matter by the Hon'ble Supreme Court observing that "The petitioner has already suffered a heart attack". Thus, it is submitted that stand taken by the learned counsel for the intervenors is not acceptable. Applicant got treatment when he suffered heart attack. No documents have been suppressed for disposal of the interim bail application. Thus, again emphasizing on the documents annexed with the application, prayer was made for interim bail.
I have considered the rival contentions raised by learned counsel for the parties and have gone through the entire record.
As is clear from the record, applicant is involved in case crime no.726 of 2020 under Sections 420, 406, 467, 468, 471 IPC. Grounds taken for interim bail is that applicant has suffered heart attack and he was admitted twice in Safdarjung Hospital, New Delhi for treatment. Trop-T Test, as is evident from the record, was found positive. Jail Doctor, where the accused is detained, in the letter dated 19.5.2021 sent to concerned Sessions Judge, has disclosed that accused suffered heart attack previously and blood pressure of the applicant is also fluctuating and is not under control, therefore, there is chance that second heart attack may occur. It is also clear that when firstly accused was sent to Safdarjung Hospital for treatment by the Jail Authorities, respondent-intervenor approached this Court by filing Criminal Misc. Writ Petition No.1766 of 2021, which is still pending. Co-accused Gautam Mehra has been allowed on interim bail by the trial court itself. Respondents-intervenors have taken plea that there is no concrete evidence to show that accused suffered heart attack at any point of time. Learned Additional Advocate General also states that proper care for treatment of the accused is being provided when needed.
This Court, in Misc. Application No.9728 of 2021, recalled the interim bail granted to the accused on the ground that accused did not cooperate with the Doctors and did not appear before the AIIMS, New Delhi where he was directed to appear. It is also clear from the order dated 12.3.2021 that Panel of 3 Doctors of AIIMS, New Delhi has opined that there was no need for urgent surgery of the applicant. In that situation, Court recalled the interim bail granted to the accused in that case. Facts of the present case are entirely different from the facts of Anil Kumar Sharma (Supra) case, as there is report submitted by the Government Doctor (annexure no.1) to the effect that heart attack has already been suffered by the applicant. Sufdarjung Hospital, New Delhi is a Central Government Hospital where applicant was also under treatment twice for about 45 days. Similarly, interim bail prayer has been been rejected in Himanshu Dabas (supra) case by Delhi High Court doubting the genuineness of medical certificate issued by a private doctor. Thus, facts of the present case also differ from the case of Himanshu Dabas (supra) case. In Gayatri Prasad Prajapati (supra) case, Hon'ble Supreme Court set-aside the parole granted to the convicted accused on the ground that High Court has not considered nor referred to the report of SGPGI, Super Speciality Hospital. Thus, in the opinion of the Court, respondents-intervenors' plea does not find support with the decisions cited by them.
Thus, on close analysis of entire facts and circumstances of the case as well as medical evidence and also looking to the nature of the offence and treatment undergone in the matter of the applicant as well as the opinion of the jail doctor and also taken into consideration the interim bail granted to the co-accused Gautam Mehra by the trial court, this Court is of the opinion that applicant has made out a case for short term bail.
Accordingly, the short term bail application is allowed.
Let the applicant Mr. Mukesh Khurana involved in case crime no.726 of 2020 under Sections 420, 406, 467, 468, 471 IPC, Police Station Phase 3, Sector-71, District Gautam Budh Nagar, be released on short term bail for a period of 60 days from the date of his release subject to executing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions, provided that the applicant shall give an undertaking that after expiry of the aforesaid period, he will surrender before the court concerned immediately.
1. Passport, if any, shall also be surrendered before the court concerned within a week from his release.
2. The applicant will not leave the Country without prior permission of the court concerned.
3. The applicant will make every endeavour to settle the claim of the remaining buyers and an affidavit regarding the progress made in this respect shall be filed before the court concerned on the date fixed in the matter.
4. The applicant will also file the medical / treatment papers on the date fixed in the matter so that same may be verified by an independent agency / hospital.
5. The applicant will not tamper with the evidence during the trial.
6. The applicant will not pressurize/ intimidate the prosecution witness.
7. The applicant will appear before the trial court / investigating agency on the date fixed, unless personal presence is exempted.
8. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
9. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
The party shall file self-attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned Court / Authority / Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
List on 29.7.2021 for hearing on regular bail application.
Order Date :- 21.6.2021 ss