Order below Exh. 1 in, Cri. Bail Application No. 544/2022
( Sudarshana Gunvant Patil applicant 2 Vs. State )
This is an application for prearrest bail u/s. 438 of
Cr.P.C. in Crime No. 118/2022 registered with Mumbai Naka
police station, Nashik u/s. 304A, 406,420, R/w.34 of Indian Penal
Code(for short “IPC”).
2.
Learned Advocate
U.R. Walzade for the applicant 2
submits that, patient Prakash Damodhar Borade was admitted in
the Wokheart hospital on 21.08.2020. He had Hypertension and
Diabetic 2. On 26.08.2020 his condition became critical which was
informed to
informant and his relatives.
Upon their, written
consent, despite every precaution and care was taken and required
treatment was given, on 28.08.2020, he expired due to COVID19
positive and acute respiratory failure and Acute Right Cerebral
Infarct with uncontrolled Diabetic, Multiorgan failure. Applicant 2
is is doctor by profession, having high reputation in the society.
She had taken
all the precaution. She never acted rashly and
negligently. Though, informant made complaint in the police
station, police did not take any action, on the ground that no case
was made out, as alleged by the informant. Hence, he moved Cri.
M.A. No. 1271/2021 wherein by order dated 31.03.2022, learned
4th Jt. Judicial Magistrate, First Class passed order and directed
police for investigation u/s. 156(3) of Cr.P.Code. Due to which
applicant apprehends her arrest.
3.
Learned A.P.P. Mr. Kapse, by filing pursis (Exh.12)
adopted say filed by I.O (Exh.11) and strongly objected this
application. I.O. is present alongwith police case papers. Original
complainant by filing his say(Exh.13) objected application of the
applicant.
4.
Perused record. It is the case
of prosecution that,
Prakash Borade father of the informant was treated in rash and
negligent manner by the applicant and applicant cheated him. As,
police did not take any action upon his complaint, he filed
complaint before learned J.M.F.C. who passed an order for
investigation u/s. 156(3) of Cr.P.C.
5.
Learned A.P.P opposed this application on the grounds
that, offence is serious, accused has been named in the FIR and
investigation is incomplete. Applicant cheated the informant on the
pretext of giving Plazma to his father and caused monitory loss of
Rs. 60,000/. Further, report of Auditor is awaited. However, it is
matter of record that, initially,police did not initiate any action
against the applicant upon the complaint of the present informant.
It is only after order for investigation u/s. 156(3) of Cr.P.C.,they
are intending to arrest the applicant. It is a matter of fact that,
deceased died due to COVID 19, positive and acute respiratory
failure and Acute Right Cerebral Infarct with uncontrolled Diabetic,
Multiorgan failure. Applicant 2 is a lady and doctor by profession
and having high reputation in the society. Considering the facts
and circumstances of the case, pertaining to medical rashness or
negligence,for
investigation
on
above
grounds
custodial
interrogation is not necessary. Investigation can be carried out by
imposing certain conditions. Offences alleged are not punishable
with death or life imprisonment. As, above Crime Number has been
registered, the apprehension in the mind of applicant of being
harassed, man handled, arrested seems to be reasonable,
warranting prearrest protection. Hence, the order.
ORDER
1.
This application stands allowed.
2.
Interim order dated 02.05.2022 passed below Exh.4 stands
confirmed.
3.
The applicant shall attend the police station on each Monday
for one month in between 11.00 a.m. to 1.00 p.m. or as and when
called by I.O. under prior written intimation or till filing of charge
sheet, whichever is earlier.
Date :17.05.2022.
( S.T. Tripathi)
Additional Sessions Judge7,
Nashik.