Nilesh Gopalbhai Nimavat vs State Of Gujarat on 16 July, 2021

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Gujarat High Court

Nilesh Gopalbhai Nimavat vs State Of Gujarat on 16 July, 2021

Bench: A.S. Supehia

   R/CR.MA/10810/2021                                     ORDER DATED: 16/07/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/CRIMINAL MISC.APPLICATION NO. 10810 of 2021
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                         NILESH GOPALBHAI NIMAVAT
                                   Versus
                             STATE OF GUJARAT
================================================================
Appearance:
MR YOGESH LAKHANI, SENIOR ADVOCATE WITH MR APURVA R
KAPADIA(5012) for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR HIMANSHU K
PATEL, APP for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                            Date : 16/07/2021
                             ORAL ORDER

[1] Heard the learned advocates for the respective parties by video conferencing.

[2] By way of the present application filed under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R. No.11208037210616 of 2021 registered with Kuvadava Road Police Station, Rajkot City, Dist. Rajkot for the offences punishable under Sections 306, 465, 477, 120B and 114 of the Indian Penal Code, 1860 (IPC).

[3] It is the case of the prosecution that the first informant is a follower of Khodiyar Dham Ashram since 15 years. The Ashram is being run by one Jayramdas Bapu, who is the president and several other trustees. It is alleged that on 01.06.2021, at about 06:45 hrs., he received a call from one Pravinbhai, who is a sevak at the ashram informing him that something has happened to Jayramdas Bapu - deceased. On reaching the Ashram, he called other trustees and it appeared to them that bapu (since deceased) has Page 1 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 passed away. The dead body of the bapu was kept in the Ashram for Darshan and he was cremated on 02.06.2021. It is alleged that his ashes were immersed in Haridwar, on 03.06.2021, and thereafter a suicide note allegedly written by the deceased, containing 20 pages were found from the room of the deceased naming three accused - (i) Alpesh Solanki,

(ii) Hitesh Jadav, and (iii) Vikram Bharvad. It is alleged that those accused had caused mental and physical torture to bapu and have also recorded the videos of bapu in compromising conditions with some ladies and for which bapu committed suicide. On 16.06.2021, the Investigating Officer filed a report before the concerned Magistrate, Rajkot for adding sections 120(b), 465, 477 of the IPC and also arraigning two accused i.e. the applicant and one Rakshit Kalola. It is alleged that the death certificate dated 01.06.2021 certifying that the deceased passed away of natural death i.e. cardiac arrest with incorrect time of death issued by one Dr.Kamlesh Kareliya of Dev Covid Care Center, was in fact issued at the behest of the applicant. The role, which is sought to be alleged and played by the applicant, is that when he examined the dead body of the deceased, the applicant being a doctor, did not prescribe for the postmortem of the deceased and by issuing such certificate, he had tried to save or shield the main accused.

[3.1] Learned Senior Advocate Mr.Lakhani for the applicant has submitted that no case worth the name Page 2 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 under section 306 of the IPC has been made out against the applicant. He has submitted that for attracting the offence under section 306 of the IPC, there has to be abatement, as defined under section 107 of the IPC as the abatement is of such a nature that the person would be leaving with no option but to commit suicide. He has submitted that the role, which is sought to be allegedly played by the applicant is that when he examined the dead body of the deceased, the applicant, being a doctor he did not prescribe for the postmortem. He has further submitted that the deceased was a regular patient being treated by the applicant time and again over a period of 6-7 years and during the said period, the deceased was admitted for about 5-6 times in the hospital run by the applicant. It is submitted that on the day of incident i.e. 01.06.2021, the applicant received a call at about 08:00 hrs. from one of the trustees namely, Jitubhai Jadeja and since the applicant could not receive the said call, on a repeated attempt by the trustee Jitubhai Jadeja at about 09:00 hrs., the applicant was informed about emergency situation of the deceased at the Ashram. He has submitted that immediately, the applicant rushed to the Ashram, where apart from several other trustees, mob of 40-50 people have gathered and upon examining the deceased, it is found that he had passed away before more than two hours as rigor mortis had developed till then and the said aspect was informed by the applicant to the trustees namely, Jitubhai, Rakshitbhai, Ramjibhai and other and the Page 3 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 applicant, in no uncertain terms, had suggested those trustees for carrying out the postmortem report if they so wished. It is submitted that the applicant had also informed the trustees that if they wish to carry out the postmortem, necessary arrangements at the Civil Hospital at Rajkot can be facilitated by him and accordingly, he had also called up Dr.Hetal Kyada, who is the Head of the Forensic Department at P.D.U. Hospital. It is further submitted that the applicant has not issued any death certificate as alleged or that the said death certificate is issued by Dr.Kamlesh Kareliya at the behest of the applicant and, therefore, the applicant had not committed the offence under section 465 of the IPC. It is also submitted that neither the death certificate was issued by the applicant nor the applicant has signed the death certificate and the doctor, who has issued the death certificate, to save his skin implicated the applicant by stating that the same is issued at the behest of the applicant. It is submitted that the applicant is a renowned doctor practicing in Rajkot, and he had given the dispensary owned by him to the government to start a COVID care center. He has relied upon the judgement of the Coordinate Bench of this Court in the case of Prakash Barot Vs. State of Gujarat, 2012 (1) G.L.R. 449.

[3.2] Learned Senior Advocate Mr.Lakhani for the applicant has submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not Page 4 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 necessary. He has further submitted that the applicant will keep himself available during the course of investigation, as well as in the trial also and will not flee from justice.

[3.3] Learned Senior Advocate for the applicant, upon instructions, has submitted that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He has further submitted that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open. Learned Senior Advocate, therefore, has submitted that considering the above facts, the applicant may be granted anticipatory bail.

[4] On the other hand, the learned Public Prosecutor Mr.Mitesh Amin appearing on behalf of the respondent- State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He has submitted that in fact the applicant is involved directly in the offence as the medical certificate dated 01.06.2021, which was issued from Dev Covid Care Center reflects the incorrect date of admission as well as cause of death since the investigation reveals, more particularly the CCTV footage that the dead body of the deceased was lying in the ashram till 09:45 hrs., however, the certificate issued by Page 5 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 the Dev Covid Center, which is run by the applicant reflects the incorrect time and cause of death hence, the custodial interrogation of the applicant would be necessary. It is further submitted that from 20 page suicide note, it appears that there is dispute with regard to the property of the Ashram and hence, a detailed investigation is required to ascertain the reason behind the death of the deceased and if at all the applicant would be benefited from such illegal certificate issuing the incorrect death certificate 01.06.2021. It is further submitted that the applicant being a doctor should have referred the postmortem of the deceased instead the dead body of the deceased was taken to his Covid Care Center and an incorrect cause of death i.e sudden cardiac arrest was shown however, the deceased had committed suicide by consuming poison.

[5] The contents of the F.I.R reveal that after the deceased was found dead on 01.6.2021, he was cremated by his followers on 02.06.2021. It is recorded that on 03.06.2021, his ashes were immersed in Haridwar, and thereafter when the room was opened by one Jitendra Singh, a 20 pages suicide note allegedly written by the deceased was found from his room in which he had named three accused, who are named in the F.I.R. Thereafter, vide report dated 16.06.2021, the applicant is arraigned as an accused. The role attributed to the applicant is that he did not refer the deceased for postmortem and instead he was taken to his Dev Covid Care Center which run by him, on his Page 6 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 behest, one Dr.Kamlesh Kareliya issued a Death Certificate dated 01.06.2021 stating false cause and time of death. It is alleged that the applicant had done so to save the main accused. It is not denied that the deceased was taking the treatment from the applicant since several years and on the date of incident when he received the news of the death, he bona fidely reached the spot and on examining the deceased he had referred to his dispensary, where he was declared dead. It is also established that in the suicide note which runs into 20 pages, there is not a whisper against the applicant. It is also revealed from the investigation, that the entire occurrence was being handled by the other trustees who were present on that date. Thus, the only link in the offence is the issuance of the death certificate with the incorrect details by one Dr.Kamlesh Kareliya, who was working at his Covid Care Center and also not referring the dead body of the deceased for postmortem. In the application, the applicant has specifically made a statement that he had also talked with one Dr.Hetal Kyada, for arraigning the postmortem at the Civil Hospital, Rajkot. Thus, the alleged role of the applicant even if it is taken on its face value without any demur and is examined under the umbrella of provisions of section 107 of the IPC, which defines 'abatement' and section 306 which stipulates "if a person commits suicide, whoever abets the commission of such suicide"; will not satisfy the mandate of both the sections.

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R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 [6] Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant.

[7] This Court has considered following aspects;

(a) The role attributed to the applicants;

(b) The applicant is not named in the F.I.R.;

(d) Prima facie, the F.I.R. reveals that there is no monetary ill-gain by the applicant;

(e) Prima facie, the ingredients of Sections 306, 107 as well as 465 of the IPC are not established in the case of the applicant;

(f) The suicide note, which is left by the deceased does not implicate the applicant in any manner and there are no allegations leveled against the applicant in this regard in the F.I.R.;

(g) Considering the facts of the case, the custodial interrogation of the applicant at this stage is not necessary.

[8] This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, A.I.R. 2011 S.C. 312.

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R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 [9] In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R. No.11208037210616 of 2021 registered with Kuvadava Road Police Station, Rajkot City, Dist. Rajkot on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he :

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 22.07.2021 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport Page 9 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 shall deposit the same before the concerned trial court within a week.

[10] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide it on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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.

[11] At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

[12] The application is allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to Page 10 of 11 Downloaded on : Sun Jan 16 00:33:50 IST 2022 R/CR.MA/10810/2021 ORDER DATED: 16/07/2021 the concerned authority / court through Fax message, email and/or any other suitable electronic mode.

[13] Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

                                                                      Sd/-             .
                                                             (A. S. SUPEHIA, J)
NVMEWADA




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