High Court
Case Details
Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36747 of 2022 Applicant :- Dr. Rajeev Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Onkar Nath Counsel for Opposite Party :- G.A.,Sr. Advocate Hon'ble Manish Mathur,J.
Legal Reasoning
counsel for parties and upon perusal of material on record, it appears that even as per the F.I.R., the applicant was not found involved in any abortion activity at the time of raid being conducted. The provisions of the Acts of 1994 and 1971 carry a maximum sentence of three years. Prima facie and subject to evidence being led, at this stage, the charges levelled under Section 315 IPC do not appear to be made out. The previous criminal history of applicant of one similar case has already been explained and co-accused Dr. Anurag Singh has also been granted bail by co-ordinate Bench of this Court. 7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution." 8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case. 9. Accordingly bail application is allowed. 10. Let applicant Dr. Rajeev Kumar involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. Order Date :- 1.9.2022 Prabhat Digitally signed by PRABHAT KUMAR Date: 2022.09.02 10:58:07 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1. Heard Mr. V.P. Srivastava learned Senior Counsel assisted by Mr. Onkar Nath and Ms. Sushma Singh learned counsel for applicant and learned Additional Government Advocate appearing on behalf of State and perused the record. 2. This first bail application has been filed with regard to Case Crime No. 287 of 2022 under Sections 4(1)(2)(3)5(1)(A)5(1) (B)5(1)(C)5(2)(A)(B)6(C),23,25,29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, Sections 3,4,5 of the Medical Termination of Pregnancy Act and Sections 201, 315, 336, 120B, 34 IPC and Rule 9, 10 and 11 of the P.C.P.N.D.T. Act, P.S. Atmaddaula, District Agra. 3. As per contents of FIR, the office of Civil Surgeon received a complaint that ultrasound clinic and the nursing home under ownership and conducted by the applicant was conducting prenatal sex determination test and was also involved in a abortion of a female fetus. It is stated that upon receiving such complaint, a team was constituted and contacted the doctors in the said ultrasound centre. Money transaction is also stated to have taken place for the said purpose and one Dr. Anurag Singh is said to have taken money for the test. It is further stated that upon conduct of pre-natal test, the fetus was found to be that of a male child and therefore no abortion was conducted but upon raiding the premises, a dead female fetus was recovered which was identified to be that of one Smt. Supriya who was admitted in the nursing home and admitted that the fetus belonged to her. 4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is submitted that the applicant in fact was granted registration for conducting an ultrasound facility in 2006 with its validity up till 2016 whereafter the registration was cancelled and resulted in litigation before the appellate authority as well as before this Court by filing writ and contempt petitions. Subsequently during pendency of aforesaid litigations, first information report was lodged on 20th March, 2021 against the applicant and his associates in another matter under the Act of 1994 against which the arrest of applicant was stayed by Hon'ble Supreme Court in S.L.P. (Criminal) No. 9504 of 2021 which is still pending consideration. 5. It is submitted that ultimately in pursuance to directions issued by this Court, dated 22nd February 2022, the applicant's license was renewed and he was permitted to operate the ultrasound centre. However the aforesaid litigation has resulted in a witch hunt by the authorities against the applicant and his associates. It is submitted that from a perusal of the F.I.R., it is apparent that no abortion activity whatsoever was discovered by the authorities concerned due to which there can not be any applicability of the Acts of 1971 and even Section 315 IPC. It is submitted that apart from said sections, the maximum sentence is of three years while the applicant is already in jail since 25th May,2022. It is submitted that even the provisions of most of the sections indicated against the applicant are not made out particularly when no D.N.A. test was conducted upon the alleged aborted female fetus to arrive at a conclusion that it belong to one of the patients admitted in the nursing home. It has also been submitted that co-accused Dr. Anurag Singh has already been enlarged on bail by co-ordinate Bench of this Court in bail application No. 30899 of 2022 while although it is said Dr. Anurag Singh who is alleged to have received the payment for the alleged pre-natal test. 6. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that the allegations made in the F.I.R. are quite heinous in nature and definitely come within the scope of Acts of 1994, 1971 and Sections indicated under the IPC. It is however admitted that maximum sentence under the Acts of 1994 and 1971 is of three years and it is only that of Section 315 IPC which is of 10 years. Upon instructions it has also been submitted that as yet no D.N.A. test of the aborted fetus is available. 6. Upon consideration of submissions advanced by learned