Gujarat High Court
Jayantilal Jethalal Thakkar vs State Of Gujarat on 13 December, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/841/2022 ORDER DATED: 13/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 841 of 2022
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JAYANTILAL JETHALAL THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR. HARDIK A DAVE(3764) for the Applicant(s) No. 1
MR N.D.NANAVATY, SENIOR ADVOCATE WITH MR K S CHANDRANI
(6674) for the Respondent(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR. DHAVAN JAISWAL,
APP for the Respondent(s) 1 STATE
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 13/12/2022
ORAL ORDER
1. By way of this successive bail application filed under Section 439 of the Code of Criminal Procedure, the applicant accused seeks regular bail in connection with the FIR being I-C.R.No.3/2019 registered with Gandhidham Railway Police Station, Western Railway, Ahmedabad, for the offences punishable under Sections 302, 120B, 397, 201 and 34 of Indian Penal Code, 1860, Sections 25(1)(b)(a) and 27 of the Arms Act, Sections 155, 141 and 145(B) of the Indian Railways Act and Section 135 of Gujarat Police Act.
2. The applicant herein arrested in the alleged offence on 11.04.2019. After filing of the chargesheet, the applicant moved regular bail application which was rejected by the trial Court. Aggrieved with the order, the applicant preferred bail application before this High Court, which also came to be rejected. The Apex Court by its order dated 27.04.2021, declined the prayer of bail Page 1 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 made by the accused.
3. This successive bail application has been preferred mainly on medical grounds.
4. Brief facts giving rise to file present application are that, deceased Jayantibhai Bhanushali, former MLA, village Abdasa, Dist. Kachchh, was allegedly shot dead on board, Ahmedabad bound Sayajinagari Express, near Samakhiyali in Kachchh District in early hours of January, 7, 2019. It is alleged that, the accused Chhabil Patel, a former MLA, had given a contract to kill the deceased, due to political rivalry. It is alleged that, the accused Chhabil Patel and the present applicant hatched a conspiracy with the help of co- accused to eliminate the deceased. It is alleged that, they hired professional contract killing through woman accused. So far role of the applicant is concerned, it is alleged that the applicant was involved in the alleged murder and had given financial support to sharpshooter for the contract killing and he also met co-accused Manisha along with the Chhabil Patel when she was in jail in another offence and was in constant touch with Chhabil Patel, as the deceased was common enemy of both the accused.
5. This successive bail application is filed by the applicant mainly on the ground that, he is suffering from relapsed head and neck cancer at stage IV and till date, his treatment is continued with the private CIMS Hospital, Ahmedabad.
6. Considering the facts and circumstances of present case, some of factual aspects which emerge from the record are required to be noted :
(i) in the month of May, 2021, the applicant was granted Page 2 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 temporary bail for his heart ailment and was admitted in CIMS Hospital, Ahmedabad where the doctor had advised him to undergo angioplasty to his coronary artery and one renal artery, as he having unstable angina due to uncontrolled sugar.
(ii) In the month of August, 2021, angioplasty with stenting of diagonal + I (drug aluting stent) was done and at the same time, throat cancer was detected and number of lymphodes in right survical region found. The consultant doctor of CIMS Hospital advised for chemotherapy and his first cycle of chemotherapy administered in the month of September, 2021 and II cycle was fixed to be given in the month of October, 2021 and accordingly, it was administered by CIMS Hospital, Ahmedabad. With the continuation of the treatment, the applicant was surrendered before the jail authority in the month of October, 2021.
(iii) In the months of January - February, 2022, when the applicant was brought before the Sessions Court for the proceedings of the case, the Sessions Court, Bhachau after considering the health condition of the applicant directed the jail authority to send him at Bhachau Community Health Centre for treatment as at the relevant time, he complained of breathlessness and unable to chew solid substance and drink liquid also;
(iv) After primary treatment, the officer present at the community centre, referred the applicant to civil Hospital, Ahmedabad for further treatment;Page 3 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022
R/CR.MA/841/2022 ORDER DATED: 13/12/2022 In the aforesaid facts and circumstances, this bail application has been preferred by the applicant.
7. This application is filed on 09.01.2022. On 18.02.2022, the coordinate Bench of this court before whom the matter was listed, passed an order "Not before this Court". Registry had placed the matter before the Hon'ble Chief Justice and accordingly, on 22.02.2022, the matter was directed to place before this Court. On 23.03.2022, after considering the report of Bhachau Community Health Center, thus, the Court referred the applicant accused to cancer Hospital, Ahmedabad and directed the authority concerned to examine the health condition and furnish a specific opinion about what would be further recourse of treatment. On 30.03.2022, matter was adjourned on the ground that the doctor in his report did not mention the schedule of further treatment. On 05.04.2022, the applicant accused was sent to cancer Hospital Ahmedabad and directed the authority to admit him for a period of 10 days for further treatment. Considering the report submitted by Government Cancer Hospital, Ahmedabad on 18.04.2022, after hearing both the sides, this Court has passed the following order:-
"1. Heard learned counsel Mr. Hardik Dave for the applicant, Mr. K.S. Chandrani, learned advocate for the original informant and Mr. Mitesh Amin, learned Public Prosecutor assisted by Mr. Manan Mehta, learned APP for the respondent State.
2. The applicant came to be arrested on 11.04.2019 in connection with offence registered with Gandhidham Railway Police Station, Kutch for the offences referred in the petition.
3. The applicant herein filed this successive bail application, mainly on medical ground as he is suffering from stage IV neck and spine cancer.
4. Mr. H.A. Dave, learned counsel for the applicant would submit that when the applicant was admitted in CIMS hospital, he has been diagnosed with the cancer disease for which palliative radio therapy is necessary. He would urged that earlier when the applicant was on Page 4 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 temporary bail, he had taken treatment at CIMS hospital and at this stage also he intend to take treatment at CIMS hospital. He would further urge that at no point of time, the applicant misused his liberty granted by this Court. Therefore, considering the health condition of the applicant as well as there is no any chances for commencement of trial, the applicant herein may be enlarged on temporary bail by imposing necessary conditions.
5.Learned Public Prosecutor Mr. Mitesh Amin opposing the plea of temporary bail, would submit that the treatment at Government Cancer Hospital at Ahmedabad is available and therefore, he may not release on temporary bail.
6. Learned counsel Mr. K.S. Chandrani for and on behalf of original informant reiterating the facts of the affidavit, contended that the applicant is not suffering from any medical ailment nor he had taken any treatment from CIMS or any other hospital. He urged that the driver of the applicant was suffering from cancer disease and the treatment case papers of the driver were being misused by the applicant herein for getting temporary bail. Therefore, he urged that the application being devoid of merits, deserves to be dismissed.
7. Having regard to the facts and circumstances of the present case and upon perusal of the medical case papers, it appears that when the applicant was on temporary bail, he had taken treatment for his heart disease as well as cancer disease at CIMS Hospital, Ahmedabad. Vide order dated 23.03.2022 and 05.04.2020, the applicant was referred to Cancer Hospital, Ahmedabad. If we peruse the certificate of Dr. Priyank Rathod dated 16.04.2022, he opined that the applicant is having Canasopharynx with neck nose with metastasis in spine, which is at stage IV. The doctor further opined that treatment palliative radio therapy is necessary.
8. In the aforesaid facts, this Court is of the view that the case is made out for interim bail for effective and complete treatment of stage IV throat and neck cancer. Earlier, the complete treatment of cancer could not administered by the CIMS hospital, due to surrendering the applicant before the jail authority. Thus, when applicant was treated at CIMS hospital, let he be permitted to take treatment at private hospital instead of Government Hospital.
9. Pending this petition, the applicant is hereby release on temporary bail for a period of 25 days from the date of receipt of this order on usual terms and conditions. The jail authority shall release the applicant on furnishing the personal bond to the tune of Rs.10,000/- and surety of like amount. The applicant shall submit progress report of his treatment.
10. Matter is adjourned to 06.05.2022."
8. This Court has heard learned Counsel Mr. Hardik A. Dave appearing for the applicant accused, Mr. N.D. Nanavaty, learned Senior Counsel assisted by Mr.Khilan Chandrani appearing for the Page 5 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 original informant and learned Public Prosecutor Mr. Mitesh Amin, assisted by Mr. Dhavan Jaiswal, learned APP for the State.
9. Mr. Dave, learned counsel for the applicant submitted that, the applicant is suffering from heart ailment as well as acute cancer at Stage IV for which it would be better for him if he receives treatment from well equipped private hospital outside the jail. He submitted that, during the temporary bail period, the applicant has not misused his liberty. He submitted that at the age of 58, he is suffering from relapsed head and neck cancer and the cycle of chemotherapy as advised by the oncologist is continued and treatment prescribed is long term treatment. He further submitted that, considering the side effect of chemotherapy, to follow the diet and to take several medicines in time, it is difficult for the applicant to manage such things in jail and therefore, he prays that discretion may kindly be exercised enlarging the applicant on bail imposing appropriate terms and conditions.
10. On the other hand, learned Senior Counsel Mr. N.D. Nanavaty for and on behalf of the informant vehemently opposed the bail application and submitted that, there is suspicion and reasonable doubt in the mind of the first informant that the applicant is not suffering from cancer ailment and the documents including the reports and certificates are forged and fabricated. He further submitted that, from the reliable sources, the first informant received information that, the driver of the applicant namely Razak Ibrahim was admitted in CIMS Hospital, Ahmedabad as he was suffering from acute cancer disease and later on, he died. Thus, the case papers and certificates of the driver have been forged by the applicant accused and cause of the cancer disease has been falsely created by the applicant accused to get bail from the Court.
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11. Learned Senior Counsel submit that, during the pendency of the application, the first informant moved an application being Criminal Misc. Application No.1/2022, for appropriate direction to refer the applicant accused before Cancer Hospital, Ahmedabad for medical examination so as to clear the doubt and suspicion of the informant.
12. Learned Senior Counsel Mr. Nanavaty submitted that, after filing of the present application, one another offence is registered against the applicant for the offence of cheating and forgery, which shows that the applicant is habitual and influential person and there is likelihood of the applicant interfering with the witnesses or otherwise polluting the process of justice. He further submitted that, prior to the FIR, number of cases pertaining to the act of cheating and forgery registered against the applicant.
13. Alternatively, it was submitted by Mr. Nanavaty that considering the background facts of the applicant accused, he prays that the order of house arrest may be passed if deem fit by this Court.
14. Learned Public Prosecutor Mr. Mitesh Amin reiterating the facts of the detailed report submitted by the investigating agency, submitted that, on the earlier occasion, the applicant was referred to Government Cancer Hospital, Ahmedabad where extensive tests had been conducted and upon examination of the applicant and relevant case papers including pet scan report, a government doctor was of the view that treatment of chemotherapy and radiation is required to be administered. In such circumstances, he prays that when comprehensive treatment at Government Cancer Hospital is Page 7 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 available, then no ground exists to exercise discretion to enlarge the applicant on bail.
15. In view of the aforesaid facts and contentions raised by the learned counsel for the respective parties, the issue arise is whether the applicant has made out a case for regular bail on medical ground?
16. Before adverting to the rival contentions and issue raised in the application, it is useful to refer the settled law. In the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr., [2004 (7) SCC 528], the Hon'ble Supreme Court held that, an accused has a right to make successive bail application for grant of bail, the court entertaining such subsequent bail application has duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court has also a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in earlier application. The successive bail applications are maintainable, but there has to be material change in the fact situation and therefore, the successive bail applications are permissible under the changed circumstances.
17. Heard at length learned counsel for the respective parties and perused the material placed on record as well as the Affidavit in Reply and Affidavit in Rejoinder.
18. Now let us deal with the first issue raised by the informant. It is contended that the applicant is not suffering from any disease and has misused the treatment case papers of his driver, who was suffering from cancer disease and fresh certificate of Government Hospital on the health issue of cancer is necessary. In the facts of the present case, if we peruse the treatment case papers of CIMS Page 8 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 hospital and report submitted by Government Cancer Hospital, it is indicative of the facts that when the applicant was taking his treatment at CIMS Hospital for heart ailment, he was diagnized of throat cancer. In the month of September, 2021, the hospital had administered three cycle of chemotherapy. It is on record that, from April 2021 to October 2021, when he was on temporary bail, he had received cancer treatment at CIMS Hospital, Ahmedabad. It needs to be noted that at that time, when the applicant was on temporary bail, no any grievance raised by the informant either before this Court or by filing appropriate complaint to the concerned Court. It is no doubt true that in the months of January - February, 2022, when the applicant was attending the court proceedings at Sessions Court Bhachau, his condition was deteriorated and considering the health condition, trial Court referred him to Bharuch Community Health Center and in turn, he was referred to Civil Hospital, Ahmedabad for his treatment of cancer. It is pertinent to note that, during the proceedings of this application, this Court by its order dated 23.03.2022 and 05.04.2022, referred the applicant at the Government Cancer Hospital, Ahmedabad and directed the authority to admit the applicant as in patient. Vide opinion dated 16.04.2022, Chief RMO of Government Hospital, submitted report through Investigating officer, wherein, it was observed that "the applicant admitted on 09.04.2022 as per the order of the High Court and as per the pet CT report, patient is having caNasopharynx with neck nodes with metastasis in spine. According to the pet Scan report, patient is having stage IV disease. Therefore, our radiation oncologist plan palliative radiotherapy of this patient, but unfortunately, patient refused to any type of investigation and further treatment so we could not proceed for further treatment for the patient." The opinion of the Government Hospital as referred above to administer the treatment of chemotherapy itself Page 9 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 suggestive of the fact that, the applicant is suffering from serious ailment of cancer. It is pertinent to note that the investigating agency has verified the case papers of CIMS Hospital and also recorded the statement of treating doctor from which nothing has come on record that the applicant is not suffering from cancer ailment and had misused his driver's treatment case papers. It needs to be noted that that when the state police agency has not alleged with regard to falsification of medical case papers or doubted the ailment of the applicant, the stand taken by the first informant having no any merits and it is rejected.
19. The second contention raised is that, in order to find out the truth, the applicant may be referred to Government Cancer Hospital. This Court is not agree with the contention as earlier the applicant was referred to the government cancer hospital and overwhelming evidence on record indicates that the applicant is suffering from cancer disease. Even State has not disputed the authencity and credibility of the report submitted by the Government Cancer Hospital as well as the private (CIMS) Hospital. Thus, this Court is of considered view that, if the applicant is referred to Government cancer hospital, no fruitful purpose would be served.
20. Mr. Mitesh Amin has emphasized on the issue that the treatment at Cancer Hospital at Ahmedabad is available and therefore, the prayer to get treatment from private hospital is not acceptable. On this issue, this Court is of opinion that since 2021, the applicant is taking treatment for his heart and cancer ailment from CIMS Hospital, Ahmedabad. The certificates issued by treating doctor, shows that due to ten cycles of chemotherapy, the applicant had suffered oral ulcers and other complications. The record indicates that the procedure of angioplasty with stent was also undertaken by the hospital. In such circumstances, it would be Page 10 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 better for him to receive treatment from well equipped hospital. In this regard, court is of opinion that, when the person is suffering from serious illness and is in prison, he requires a human treatment.
21. For the foregoing reasons, it appears that after rejection of the bail, the applicant herein has developed serious ailment as discussed hereinabove and therefore, considering the change circumstances, the successive bail application is maintainable. Thus, considering the totality of the circumstances, this Court is of view that on medical ground, the applicant is entitled to enlarge on regular bail, imposing stringent condition, safeguarding the interest of prosecution as well as the informant as raised above in the present application. Presently application is on temporary bail. The applicant shall present himself before the trial Court within 10 days from the date of this order.
22. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being I-C.R.No.3/2019 registered with Gandhidham Railway Police Station, Western Railway, Ahmedabad on executing a personal bond of Rs.25,000/- (Rupees twenty Five thousands only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall:-
[a] he shall not take undue advantage of liberty or misuse liberty;
[b] he shall not act in a manner injuries to the interest of the prosecution;
[c] he shall surrender passport, if any, to the lower court within a week;
[d] he shall not leave the city where the applicant wants to reside without permission of the trial Court, except for treatment purpose and to attend the court proceedings Page 11 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022 R/CR.MA/841/2022 ORDER DATED: 13/12/2022 or to mark his presence before the police station, if any, and provide the name of city and complete address of his residence to the trial Court at the time of release;
23. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(ILESH J. VORA,J) SUCHIT Page 12 of 12 Downloaded on : Sat Dec 24 03:05:31 IST 2022