Criminal Appeal No. 976 of 2023 · Bombaybench High Court
Case Details
1 927-CrApl-976-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 976 OF 2023KAPIL SURESH LANDGEVERSUSTHE COMMISSIONER OF POLICE AND OTHERS...Mr. Manikrao L. Wankhade, Advocate for AppellantMr. S.P. Sonpawale, APP for Respondent Nos.1 & 2/StateMr. Ajaysinha U. Chandel, Advocate for Respondent No.3...WITHCRIMINAL APPEAL NO. 942 OF 2023DR. BHAUSAHEB DHANJI GONGE AND ANOTHERVERSUSTHE STATE OF MAHARASHTRA AND ANOTHER...Mr. Himmatsinh D. Deshmukh, Advocate for AppellantMr. S.P. Sonpawale, APP for Respondents/StateMr. Ajaysinha U. Chandel, Advocate for Respondent No.2... CORAM : NITIN B. SURYAWANSHI, J.DATE : 04th APRIL, 2024PER COURT : 1.Leave to amend the prayer clause in Criminal AppealNo. 976/2023.2.Both these appeals take exception to the orders dated03/10/2023 and 10/10/2023 passed by learned Additional SessionsJudge / Special Judge, Aurangabad, in Criminal Bail ApplicationNos.2050/2023 and 2061/2023, thereby rejecting anticipatory bailto appellants in C.R. No.178/2023, registered with Osmanpura PoliceStation, Aurangabad, for offence punishable under Sections 304 ofSVH
Legal Reasoning
2 927-CrApl-976-23.odtthe Indian Penal Code and Sections 3(1)(r) and 3(1)(s) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act.3.Informant lodged FIR against appellants alleging that,on 06/05/2021, his elder brother Santosh was having cold and feverand was feeling weakness, hence, informant contacted neighbourKapil Landge. Kapil told that he is a Doctor at Ashirwad Hospital,Devagiri Colony, Mukundwadi. Dr. B. D. Gonge Patil runs CovidCenter there and he is general physician surgeon. All the patientstreated by him are cured. He therefore, told informant to bring hisbrother and father to Ashirwad Hospital. Informant admitted hisbrother and father in Ashirwad Hospital. Dr. B. D. Gonge Patil, Dr.Kapil Suresh Landge and Dr. Anjali B. Gonge Patil treated his brotherand father. On 07/05/2021, Dr. B. D. Gonge Patil and Dr. KapilLandge assured that 100% his brother and father will be cured. Onthat day, health of informant’s brother deteriorated. Informant,therefore, requested Dr. B. D. Gonge Patil to give oxygen to hisbrother. At that time, Dr. B. D. Gonge Patil asked him where he staysand what is his caste. Informant disclosed his residential addressand that he belongs to schedule caste. Then Dr. Gonge Patil gotangry and took name of informant’s caste and told him not to teachthe Doctors and abused him in the name of caste. Informant toldthe said incident to Kapil Landge. Kapil told informant that his fatherSVH 3 927-CrApl-976-23.odtand brother will be cured and if informant wants both of them to besafe he should not interfere and they are giving best possibletreatment to both of them. Thereafter, health of his brother went ondeteriorating. On 10/05/2021, when informant told Dr. B. D. Gongethat his brother’s condition is serious, Dr. B. D. Gonge abused him inthe name of caste and told that he knows what is to be done. Hetold informant that he may take his brother to MGM Hospital and heis not in a position to treat his brother. By saying so, Dr. B. D. GongePatil tried to expel informant and his brother from the hospital.Thereafter, on 11/05/2021 at about 01:00 a.m. informant’s brotherwas lying still, his heartbeats were also not traceable. Informant,therefore, contacted Dr. B. D. Gonge Patil, Dr. Anjali Gonge and Dr.Kapil Landge. At that time, Dr. Anjali Gonge and Dr. B. D. GongePatil abused informant in the name of caste. They went near hisbrother and told him not to act smart and to take his brother toGhati Hospital and he will make necessary arrangements. Informantand his brother along with staff of Ashirwad Hospital, went in anambulance without any oxygen to Ghati Hospital. His brother hadexpired at Ashirwad Hospital only. On reaching Ghati Hospital, hewas declared ‘brought dead’ at 05:15 a.m. A.D. No.13/2021 isregistered. Thereafter on 15/06/2021 informant went to AshirwadHospital and asked for medical papers of treatment of his brother,however, appellants refused to give those documents and drovehim away. Informant then got information under the R.T.I. Act and itSVH 4 927-CrApl-976-23.odtwas disclosed that Ashirwad Clinic is not registered and Dr. B. D.Gonge Patil did not have permission to run Covid Center.4.After registration of offence, appellants movedapplication for anticipatory bail, which is rejected by the trial Court.Hence, the present appeal. 5.Heard learned advocates for appellants, learned APP forState and learned advocate for informant. Perused the investigationpapers.6.Learned advocate for informant and learned APP havestrenuously submitted that Ashirwad Hospital is not registered andthere was no permission to run Covid center. Dr. B.D. Gonge ishaving B.A.M.S. Degree and his wife is having B.H.M.S. Degree. Theydo not have requisite skills to treat Covid patients and because ofthe wrong treatment given by them, patient is expired. Heavyreliance is placed by both of them on the Committee’s MedicalReport, wherein it is stated that “The entire treatment protocolrequired to be followed in suspected / positive case of COVID-19 tooffer a reasonable level of care and skill in order to attempt to savethe life is not seen from the records provided to this committee. Inother words, all above things suggest that there is lack ofreasonable degree of care and skill”. Relying on this report, it issubmitted that this is clear-cut case of negligence on the part ofSVH 5 927-CrApl-976-23.odtappellants. Therefore, they are not entitled for discretionary relief ofanticipatory bail.7.Charge-sheet is filed in present crime on 27/01/2024.Informant has alleged in the FIR that he was asked his caste by Dr.B.D. Gonge, during treatment of his brother. There was no occasionfor Doctor to ask caste of patient or his relatives during thetreatment. The said allegation prima facie appears to beunbelievable. It prima facie appears that due to the unfortunatedeath of brother, FIR is lodged by informant out of grudge. Allegedabuse in the name of caste has taken place on 07/05/2021,10/05/2021 and 11/05/2021 and the FIR is lodged on 21/09/2023.The delay is not explained. In these peculiar facts, prima facie,provisions of Atrocity Act are not attracted and hence, bar underSection 18 would not be applicable to the facts of the present case.Informant has conveniently not made any reference to his fatherwho was admitted along with his brother at Ashirwad Hospital. Itappears that he was cured and discharged from the said hospital.8.So far as appellant Kapil Landge is concerned, there areno allegations against him that he has hurled caste abuses toinformant.9.Since charge-sheet is filed, investigation is complete.All the relevant documents are seized during investigation.SVH 6 927-CrApl-976-23.odtAppellants were granted interim protection and they have co-operated in the investigation. Trial is not likely to conclude in nearfuture. Appellants are permanent residents of Aurangabad City andthey are not likely to abscond if released on bail. Hence, pre-trialcustodial detention of appellants is not necessary. 10.In the result, both the appeals are allowed by confirminginterim protection granted to appellants by orders dated 19/10/2023and 12/10/2023. Impugned orders 03/10/2023 and 10/10/2023passed by learned Additional Sessions Judge / Special Judge,Aurangabad, in Criminal Bail Application Nos.2050/2023 and2061/2023, are hereby quashed and set aside. (NITIN B. SURYAWANSHI, J.)SVH