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2021 DIGILAW 316 (GUJ)

Sureshbhadu Mangalram Bishnoi v. State of Gujarat

2021-04-06

A.Y.KOGJE

body2021
ORDER : 1. This application is filed for extension of temporary bail for 30 days to the applicant who was granted temporary bail by the 5th Additional District Judge, Palanpur, District: Banaskantha in Criminal Misc. Application No.905 of 2020, which was subsequently extended by the District Court, but lastly by an order dated 30.01.2021 rejected the further extension of temporary bail in Criminal Misc. Application No.91 of 2021. 2. In the application, it is pleaded that the applicant is an accused in the FIR bearing C.R. No.11195003200367 of 2020 registered with Amairgadh Police Station, Palanpur for offence punishable under Sections 8(C), 18(B) and 29 of the NDPS Act. On account of death of the father of the applicant on 18.12.2020 for the purpose of post death rituals, an application was filed for temporary bail and by order dated 28.12.2020 the applicant was ordered to be released on temporary bail for a period of 8 days between 28.12.2020 to 05.01.2021. The applicant filed Criminal Misc. Application No.17 of 2021 seeking extension of temporary bail period on the ground that the applicant is suffering with Covid-19 and is admitted in the hospital at Surat. The temporary bail was extended till 19.01.2021. Again Criminal Misc. Application No.55 of 2021 was filed on the ground that he has not completely recovered and hence, by order dated 19.01.2021, the temporary bail period was extended till 30.01.2021. Thereafter, again for extension of temporary bail, Criminal Misc. Application No.91 of 2021 was filed on the ground that the applicant is still not recovered from Covid-19 however, the 5th Additional District Judge, Palanpur vide its order dated 30.01.2021 was pleased to reject the bail application. 2.1. It is submitted that in view of the aforesaid order, the applicant has filed present extension application as once again the applicant has tested positive and the doctor has advised for home quarantine for 14 more days. The copy of the certificate is annexed as Annexure-F. 3. Over and above the aforesaid pleadings, learned advocate has submitted that as on date, the health of the applicant is not proper and still continues to be under the treatment and therefore, the temporary bail period should be extended further and the order of the Sessions Court may be set aside. 4. Over and above the aforesaid pleadings, learned advocate has submitted that as on date, the health of the applicant is not proper and still continues to be under the treatment and therefore, the temporary bail period should be extended further and the order of the Sessions Court may be set aside. 4. Learned Additional Public Prosecutor appearing for the respondent-State has opposed the grant of extension of temporary bail submitting that the medical case papers produced are not reliable and that apparently the applicant, under the excuse of Corona Virus, is seeking extension of temporary bail though the same is not warranted. It is submitted that the State has sufficient infrastructure and facility for isolation, quarantine and treatment of the prisoners. It has also set up for proper protocol for arresting accused persons and wherever the accused persons are surrendering after temporary bail, to carry out proper test regarding the covid-19 and thereafter, only admit the prisoners as per the result either into the jail or in to the quarantine facility. In the instant case, despite the extended period of temporary bail has expired long back the applicant has not surrendered not only that his whereabouts are also not traced. The applicant is an accused of serious offence under the provisions of NDPS Act wherein he has been found in conscious possession of 3 Kgs of Opium and the applicant is apparently making all efforts to avoid the custody. 4.1. Learned APP has also raised a valid question that the applicant who is a native of Rajasthan and has been arrested in connection with an offence which is registered at Banaskantha bordering Rajasthan, when he is enlarged on temporary bail is found travelling to Surat where he is reported to have tested positive, Surat being a District close to Maharashtra exactly opposite to Rajasthan, there is no reason for the applicant to travel to Surat for treatment by crossing big centers like Mehsana, Ahmedabad, Vadodara, Bharuch then reach Surat. 5. To the aforesaid arguments, learned advocate has filed an affidavit starting from page-39 explaining that to perform the death rituals of his father he had gone to place at Chanod and from there he went to his friend’s residence at Surat and there he got the medical test done, where he was found to have contracted Corona Virus. 5. To the aforesaid arguments, learned advocate has filed an affidavit starting from page-39 explaining that to perform the death rituals of his father he had gone to place at Chanod and from there he went to his friend’s residence at Surat and there he got the medical test done, where he was found to have contracted Corona Virus. In support, learned advocate has produced report of Om Hospital, Pathology Laboratory and an affidavit in Gujarati signed by the applicant making allegations against the learned APP with his name stating that the learned APP has made a wrong statement in connection with an another accused person of some other offence, who had also filed temporary bail application being Criminal Misc. Application No.18207 of 2020 by accused Sanjay @ Sanju Mansukh Vasava of a different crime. The affidavit is accompanied with certificates and photographs to indicate that in case of Sanjay Vasava learned APP had given the incorrect fact regarding Shri Hari Hospital (coincidently, the very hospital which has issued the certificate to present applicant also). The affidavit is also annexed the photographs of the hospital to justify that Shri Hari Hospital is a full-fledged hospital and not a hospital which is existing only on paper. 6. The Court has considered the rival submissions of the parties and perused the documents placed on record. Though the application is a short application of three pages. The Court on account of what transpired during the proceedings is constrained to record detailed reasonings for curtailing the practice that is being adopted for seeking temporary bail or extension of temporary bail under the guise of the applicant suffering with Corona virus. 7. The applicant is an accused of being C.R. No.11195003200367 of 2020 registered with Amairgadh Police Station, Palanpur for offence punishable under Sections 8(C), 18(B) and 29 of the NDPS Act, wherein the applicant has been arrested with conscious possession of 3 Kgs. of narcotic substance Opium. The Criminal Misc. Application No.905 of 2020 came to be filed on the ground that father of the applicant has expired on 18.12.2020 and therefore, for carrying out the post death rituals temporary bail was sought, which came to be allowed by order dated 28.12.2020 for the period of eight days between 28.12.2020 and to surrender on 05.01.2021. It appears that subsequently, an application for extension was filed on 05.01.2021 being Criminal Misc. It appears that subsequently, an application for extension was filed on 05.01.2021 being Criminal Misc. Application No.17 of 2021 on the ground of applicant having tested positive for corona virus and by order dated 05.01.2021, the temporary bail period was extended by 14 days and applicant was directed to surrender on 19.01.2021. Again on 19.01.2021, another application was moved being Criminal Misc. Application No.55 of 2021 which came to be allowed by order dated 19.01.2021 extending the temporary bail and directing the applicant to surrender on 30.01.2021 at 4:00 p.m. 8. It appears that on 29.01.2021 Criminal Misc. Application No.91 of 2021 was filed by the applicant for further extension on the ground of the applicant is still suffering from Covid-19. This application came to be rejected and while rejecting the application, the Sessions Court has recorded in para-5 as under:- “5. It is relevant to note that applicant has been granted with temporary bail bearing in mind the ground of humanity to perform the religious obligations on account of death of death of his father. Thereafter, two times the applicant moved this court for extension of his temporary bail under the purview of Covid-19 infections which was also considered by this Court and accordingly, granted. Now, based on the very same Covid-19 report which was presented by applicant in his previous extension application, the applicant again moved before this court to extend the temporary bail. Application neither surrendered before the Jail Authority on cessation of temporary bail extension period nor remain present before this Court while making representation. It seems that the applicant is trying every efforts to remain outside the Jail and misguiding this court by making false representations. It also comes on record from the office of D.G.P. that applicant has not surrendered before the Jail Authority and the period of his temporary bail has cased and thus, the applicant breached the conditions of temporary bail, granted by this court. Hence, the behavior of applicant is not fit for the prosecution’s case and so, the present application is required to be disallowed to discourage such acts of applicant. Considering the aforesaid discussion, this court is taking strict view by rejecting the present application of applicant and hence, the following order is passed. FINAL ORDER. •?The present application of applicant is hereby dismissed. •?NBW be issued to applicant immediately. Considering the aforesaid discussion, this court is taking strict view by rejecting the present application of applicant and hence, the following order is passed. FINAL ORDER. •?The present application of applicant is hereby dismissed. •?NBW be issued to applicant immediately. •?The bail-bond and surety of applicant is ordered to be forfeited. •?Recovery warrant be issued to surety of applicant. •?Deposit of applicant of Rs.50,000/- (Rs. Fifty Thousand Only) deposited before this court vide Cr.M.A. 905/2020, dt. 28/12/2020 is also ordered t be forfeited and lapsed to the State Government Account and Nazir is directed to comply accordingly. •?The Superintendent of Police, Banaskantha is directed to depute one Special Nodal Officer to arrest and sent the applicant to the concerned Jail as soon as possible. •?Necessary Yadi be sent to the concerned Nazir, Jail Authoirty and the office of the Superintendent of Police, Banaskantha.” 9. Upon rejection of such application, the Court has directed issuance of non-bailable warrant to the applicant immediately and the bail-bond and the surety of the applicant was ordered to be forfeited. The deposit of Rs.50,000/- was also ordered to be forfeited and the Superintendents of Police, Banaskntha was directed to depute Special Nodal Officer to arrest the applicant forthwith. Despite the aforesaid, it appears that the whereabouts of the applicant is still not found and though there is no extension of temporary bail, the applicant has yet not surrendered nor apprehended. 10. The applicant has thereafter, filed the present application on 11.02.2021, wherein this Court on 12.02.2021 has issued notice making it returnable on 19.02.2021. The Court has thereafter, passed orders on the dates of adjournments which are relevant to be reproduced herewith:- "Oral Order dated 19.02.2021. Learned advocate for the applicant is permitted to file an affidavit with the details and orders of release of the applicant on temporary from the date of his arrest. Learned advocate is also permitted to place on record the circumstance under which the applicant, who is a resident of Rajasthan and arrested in an offence registered with Amirgadh Police Station at Palanpur, and therefore, lodged in Palanpur District Jail after being released on temporary bail, went to Surat. The affidavit to be filed on or before 24.02.2021. Learned APP also verify the medical condition of the applicant as it is stated that the applicant is still admitted in Shri Hari Multiplicity Hospital at Surat. The affidavit to be filed on or before 24.02.2021. Learned APP also verify the medical condition of the applicant as it is stated that the applicant is still admitted in Shri Hari Multiplicity Hospital at Surat. It is observed that there is no extension of temporary bail since the last date on which the applicant was to surrender and i.e. on 30.01.2021. S.O. to 24.02.2021.” “Oral order dated 01.03.2021. Stand over to 08.03.2021. The affidavit as per the order dated 19.02.2021 is filed on behalf of the applicant. However, today, Mr.Zubin Bhardas has appeared in place of Mr.Tolia, who has earlier represented the case. Learned APP states that the verification has been carried out and would like to place on record of the Court the outcome of the verification by way of an affidavit. Considering the submissions made by learned APP, as to what had transpired on the previous date when Mr.Tolia appeared on behalf of the applicant, it would be appropriate and desirable that Mr.Bharda and Mr. Tolia may appear on the next date of hearing.” “Oral order dated 08.03.2021. 1. Learned advocate Mr. Harshit Tolia (sic.) tenders an unconditional apology and submitted that on account of lack of instructions from the advocate on record, as also the fact that on each and every date, other advocate was engaged to appear for the applicant, therefore, learned advocate Mr.Tolia thought if fit to not to appear in this matter thereafter. The apology is accepted and Mr.Tolia is relieved from appearing from this matter. 2. Learned advocate Mr.Zubin Bharda, who had appeared on the earlier occasion, also complains about the inadequate instructions as well as not going by the advice of the advocate and frequent change of advocates so as to avoid following instructions/advices given by the advocates with regard to the pending matter. Therefore, he is also unable to appear in this matter any further. 3. The Court left with no option but to issue notice to Learned advocate Mr. Amit Shah, who is advocate on record of the applicant. Hence, ISSUE NOTICE to learned advocate Mr. Amit Shah returnable on 16.03.2021. 4. In the meantime, the verification produced by learned APP is taken on record. It is brought to the notice of the Court that the applicant, though advised, has yet not surrendered before the jail authority and has unauthorizedly continued to be out of judicial custody. Hence, ISSUE NOTICE to learned advocate Mr. Amit Shah returnable on 16.03.2021. 4. In the meantime, the verification produced by learned APP is taken on record. It is brought to the notice of the Court that the applicant, though advised, has yet not surrendered before the jail authority and has unauthorizedly continued to be out of judicial custody. It is submitted that in view of the aforesaid, learned advocate Mr.Bharda is also unable to proceed with the matter of the same applicant for regular bail on merits i.e. Criminal Misc. Application No.13056 of 2020.” “Oral order dated 16.03.2021 Stand over to 22.03.2021. In the meantime, learned advocate Mr. Amit D.Shah appearing for the applicant shall supply the additional affidavit which is filed in Court starting from page-39 onwards as well as copy of the application alongwith annexures to the office of learned APP. 11. From the aforesaid chronology of orders, the conduct on the part of the applicant surfaces on record. The Sessions Court while rejecting the application for extension has observed that the certificate of Covid test relied upon by the applicant was the same certificate on which the applicant has relied previously. Thereafter, there is no certificate to indicate whether the applicant is still suffering with Corona Virus. The certificate in question is at Annexure-F which does not bear any proper date, but on the extreme right-top a date is scribbled which shows to be the date 18/01/2021. The copy produced appears to be a scanned copy. It is pertinent to observe that this was the certificate which was also produced by the applicant when his application being Criminal Misc. Application No.55 of 2021 was filed and based on this aforesaid certificate, an order dated 19.01.2021 came to be passed. However, when the Sessions Court was considering application being Criminal Misc. Application No.91 of 2021 which was filed on 29.01.2021, there was no fresh certificate to indicate that the applicant was Covid positive. All the certificates thereafter produced alongwith the application were of private hospital and that too prior to 18.01.2021. The other set of certificate produced is dated 07.02.2021 by one Doctor M. Patel of Shri Hari Multi Specialty Hospital, but there is no test report with regards to the applicant being Covid positive. A reference slip is placed on record dated 07.02.2021 with time of 10:00 a.m. wherein in handwritten it is written as “Rapid-Positive”. The other set of certificate produced is dated 07.02.2021 by one Doctor M. Patel of Shri Hari Multi Specialty Hospital, but there is no test report with regards to the applicant being Covid positive. A reference slip is placed on record dated 07.02.2021 with time of 10:00 a.m. wherein in handwritten it is written as “Rapid-Positive”. The Annexure-F certificate is issued by Surat Municipal Corporation of East Zone-A, whereas the refer slip of Surat Municipal Corporation dated 07.02.2021 is of Limbayat Zone where the address of the applicant to shown as 37-Sardar Society, Puna Gam. This refer slip bear the Stamp of Parvat Urban Health Center. This document placed on record at page-38 and typed copy at page-38A appears to be doubtful and cannot be treated to be document report to conclude that the applicant is suffering with Covid positive. 11.1. The foremost reason to doubt the conduct of the applicant in relying upon such certificate is the change in the nature of certificate indicating the status of Covid-19. The first one being a certificate at Annexure-F by Surat Municipal Corporation East Zone-A purportedly dated 18.01.2021 and another being a refer slip dated 07.02.2021 not signed by any doctor or a medical person, but only signed by one “Donga Ritesh”. The refer slip does not mention the correct address of the applicant nor does it conclusively state the status of the applicant insofar as Covid-19 is concerned. Therefore, the Court is of the view that the applicant is trying to make out grounds by producing irrelevant and misleading documents. There is no reason why the refer slip should not be followed by a full-fledged certificate as is produced at Annexure-F by the applicant. 12. To satisfy the Court that the applicant is still not in good health, the learned advocate for the applicant has filed an affidavit starting from page-39. It is annexed with report of the pathology laboratory where in the note it is stated as Covid-19 AB test where it does not indicate whether the applicant is Covid positive or not. The note in the report indicates that the case is to be considered by Covid-19 Ab by ELISA or by Covid-19 Ag by RT-PCR. The applicant has produced none of this confirmatory test to confirm that the applicant is still surfing with Covid-19. 13. The note in the report indicates that the case is to be considered by Covid-19 Ab by ELISA or by Covid-19 Ag by RT-PCR. The applicant has produced none of this confirmatory test to confirm that the applicant is still surfing with Covid-19. 13. The affidavit is also annexed with an affidavit in vernacular signed by the applicant himself in front of a notary at Surat dated 05.03.2021. How the affidavit of 05.03.2021 is accompanying the affidavit of the applicant dated 20.02.2021 is also a question. However, the perusal of affidavit in vernacular dated 05.03.2021 also does not help the case of applicant insofar as his status of being Covid positive is concerned instead in the affidavit the content disclosed the status of Shri Hari Hospital where the applicant claims to be admitted is a full-fledged 15 bed hospital and not a 2 bed hospital. The relevance for mentioning the status of Shri Hari Hospital though not directly connected to the present application, but still the same is mentioned in the vernacular affidavit of the applicant. The affidavit also refers to Criminal Misc. Application No.18207 of 2020 which is an application of another accused person namely Sanjay @ Sanju Mansukh Vasava who is an accused of altogether a different offence who has also made an application for temporary bail by producing the certificate issued by the very Shri Hari Hospital and in connection with that application, the verification of that applicant and his medical condition was ordered to be carried out and the verification carried out by learned APP is referred to in the present affidavit including the photographs of the hospital to suggest that the hospital is a full-fledged hospital and not a small hospital or a hospital on paper only. It appears the purpose of filing the present affidavit is to extride motives to the learned APP and therefore, when the Court put a straight question to the learned advocate that how the applicant who himself claims to be admitted in hospital and under treatment is not only able to swear an affidavit at Surat, furnish full photographs of the hospital of the Surat and also is aware of the proceedings and orders passed in a matter which is completely unconnected with the offence of the present applicant, but the only common factor with the application being Criminal Misc. Application No.18207 of 2020 and the present application is the learned advocate appearing on behalf the applicant. Therefore, there is no hesitation to conclude that the personal knowledge of the advocate of the applicant is being narrated in the affidavit to suggest the same to be the personal knowledge of the applicant. The purpose with which such affidavit is filed to ascribe motives to learned APP who was bound to perform his duties by carrying out necessary verification. Such practice by learned advocate for the applicant requires to be deprecated. 13.1. As is evident from the order passed by this Court and reproduced hereinabove dated 19.02.2021, 01.03.2021 and 08.03.2021 conduct of the applicant as well as his advocate is becoming apparent and therefore, requires to be strongly deprecated. 14. The conduct of the applicant is required to be observed as the applicant is unable to give a convincing explanation as to how the applicant who is native of Rajasthan and has been apprehended in Palanpur of District Banaskantha bordering Rajasthan is detected to be Covid positive when he has travelled to Surat when there was no specific reason for the applicant to travel to Surat while on temporary bail. It is observed herein that the applicant was enlarged for attending the post death rituals of his father who had died at his native in Rajasthan, there is no ritual of any native of Rajasthan which is required to be performed at Chanod in Gujarat which is located between the Districts of Bharuch and Baroda and still no cause for applicant to all the way to Surat as Surat is located on the other hand of State of Gujarat nearing boarder of Maharashtra. This itself creates suspicion. 15. Over and above, it is also pertinent to observe that the State has full infrastructure to admit an under-trial prisoner on temporary bail by following the State protocols, even if an under trial is suffering with Corona Virus with all the necessary facilities available even for medical treatment or for quarantine, the applicant was duty bound to surrender when the bail application came to be rejected. However, as is observed in the preceding orders not only the learned advocates were misled by the applicant but the applicant has also resorted to sharp practice by not surrendering. However, as is observed in the preceding orders not only the learned advocates were misled by the applicant but the applicant has also resorted to sharp practice by not surrendering. This Court has observed a pattern which is now emerging in cases of temporary bail application and extension of temporary bail application where upon the temporary bail being granted, the applicant accused on their own volition do not surrender upon the expiry of the temporary bail period, but file an application for extension before the higher forum after the expiration of temporary bail period. Since the temporary bail matter is pending do not surrender before the concerned authority and ultimately withdraw the application filed before the higher forum seeking for a date to surrender, thereby automatically regularizing the period where the applicant accused has uaauthorizedly remained outside the custody. In the present case also, in the midst of the application, learned advocate for the applicant abruptly made a request seeking permission for applicant to surrender on the very next date, but when the learned advocate was confronted with the aforestated pattern which would automatically lead regularizing of his unauthorized period from January-2021 to March-2021, the learned advocate in rather harsh, impolite and abrupt manner demanded the Court to pass a reasoned order as he wanted to challenge this order before the Apex Court. 16. Despite what has been observed in order dated 19.02.2021 making it clear that there is no extension of temporary bail, the applicant has still failed to surrender not only that the applicant has failed to instruct the learned advocate appearing on his behalf. 17. In view of the aforesaid reasonings, the Court does not find any reason to interfere with the order of the concerned Sessions Court nor the Court finds sufficient reason for granting extension of temporary bail any further. Hence, present application is hereby rejected.