The applicant, Dr. Satish, who is a qualified medical practitioner with no prior criminal record, applied for bail in a case where he has been charged with offenses related to a shortage of medical oxygen at a hospital where he was head of the anesthesia department. The court analyzed documents and statements from the investigation and found that the applicant was not involved in procuring, billing or payments for the medical oxygen supplies. Considering this and that the applicant has already spent 7 months in custody, the court granted bail to the applicant with conditions to ensure his presence at trial.

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Court No. - 59
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 382 of 2018
Applicant :- Dr. Satish
Opposite Party :- State Of U.P.
Counsel for Applicant :- Dileep Kumar,Rajrshi Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Yashwant Varma,J.
Heard Shri Dileep Kumar, learned counsel for the applicant and
Shri Rishi Chaddha the learned AGA.
The applicant has been charged in Case Crime No. 428 of 2017
alleging commission of offences under Sections 308, 466, 468, 469,
471, 120-B IPC and Section 7/13 of the Prevention of Corruption Act.
The allegations in the FIR [and which are also reiterated in the
charge sheet submitted against the applicant] essentially are that as
Head of the Department of Anesthesia, the applicant had also been
assigned the supervisory role in respect of supply of medical oxygen in
the BRD Medical College. It is alleged that it was on his watch that the
institution faced a disconcerting situation of a shortage of medical
oxygen resulting in panic spreading throughout the hospital.
According to the FIR allegations since the relevant logbooks were not
kept properly, a situation was created where the medical institution
faced a serious specter of the supply of medical oxygen running out
completely. The allegation further is that although such a situation had
arisen, the applicant without any sanctioned left the station and was
thus guilty of dereliction of duty.
Insofar as the allegations referable to Section7/13 of the
Prevention of Corruption Act are concerned, the case against the
applicant is that he being in charge of the supply of medical oxygen
entered into a criminal conspiracy with others to ensure that bills of the
supplier are not released except on receipt of illegal gratification and it
was on account of this fact that the institution faced a critical shortage

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of medical oxygen.
Having considered the rival submissions and having perused the
material on record, the affidavits filed including the statements of
individuals recorded under Section 161 Cr.P.C. the following position
emerges.
The Court firstly notes that the applicant has been in jail since
11 September 2017. He has thus spent 7 months in custody. Shri
Chaddha, the learned AGA categorically states that no aspect of the
investigation remains outstanding and that a charge sheet has been
duly submitted and sanction obtained. The applicant is a qualified
medical practitioner with no prior criminal history. There is also no
material on record nor has it been asserted by the learned AGA that the
applicant has tried to influence any witness or tampered with the
evidence.
Insofar as the issue of the applicant being on leave without
permission is concerned, the Court notes the material brought on
record on the basis of which it is submitted that the applicant had left
to attend the Convocation ceremony of his son who at that time was
studying at IIT Mumbai. Shri Kumar, learned counsel for the applicant,
has also drawn the attention of the Court to the leave application made
in this respect to contend that the same was applied for even before the
entire episode unfolded. He has also with the aid of other relevant and
contemporaneous material, which prima facie merits acceptance,
sought to establish that when the applicant came to know of the events
unfolding, he immediately rushed back to the hospital. Sri Kumar has
also referred to the ticket bookings, the travel undertaken by the
applicant and his wife and their journey back to Gorakhpur.
Before this Court it is also not disputed that the applicant was
neither involved in nor was he assigned any work relating to the award
of tender/contract for supply of medical oxygen or the release of
payments of suppliers. In fact Shri Chaddha, the learned AGA has

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candidly admitted that the applicant was in no manner connected with
the processing, sanctioning or approving of bills in favor of the entity,
which was charged with the supply of medical oxygen. In fact a prima
facie evaluation of the evidence collected in the course of investigation
seems to establish that the applicant has not been ascribed any role in
the release of payments to suppliers.
Although Shri Chaddha has referred to the statements of Shri
Dharmendra Chaudhary, Shri Purshuttam Shukla and Shri Ram Saran
Gupta, these statements would not justify the continued confinement
of the applicant especially when it is prima facie evident that he had no
control or involvement in the preparation, sanction or release of bills
and payments in respect thereof.
This Court also bears in mind the principles which must govern
the grant of bail at the pre-conviction stage as recognized in a recent
decision of the Supreme Court in Dataram Singh Vs. State of
U.P.1
where the following eloquent observations were made: -
3. While so introspecting, among the factors that need to be consid-
ered is whether the accused was arrested during investigations when
that person perhaps has the best opportunity to tamper with the evi-
dence or influence witnesses. If the investigating officer does not find
it necessary to arrest an accused person during investigations, a strong
case should be made out for placing that person in judicial custody af-
ter a charge sheet is filed. Similarly, it is important to ascertain whether
the accused was participating in the investigations to the satisfaction of
the investigating officer and was not absconding or not appearing
when required by the investigating officer. Surely, if an accused is not
hiding from the investigating officer or is hiding due to some genuine
and expressed fear of being victimised, it would be a factor that a
judge would need to consider in an appropriate case. It is also neces-
sary for the judge to consider whether the accused is a first-time of-
fender or has been accused of other offences and if so, the nature of
such offences and his or her general conduct. The poverty or the
1 (2018) 3 SCC 22

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deemed indigent status of an accused is also an extremely important
factor and even Parliament has taken notice of it by incorporating an
Explanation to Section 436 of the Code of Criminal Procedure, 1973.
An equally soft approach to incarceration has been taken by Parliament
by inserting Section 436-A in the Code of Criminal Procedure, 1973.
4. To put it shortly, a humane attitude is required to be adopted by a
judge, while dealing with an application for remanding a suspect or an
accused person to police custody or judicial custody. There are several
reasons for this including maintaining the dignity of an accused person,
howsoever poor that person might be, the requirements of Article 21 of
the Constitution and the fact that there is enormous overcrowding in
prisons, leading to social and other problems as noticed by this Court
in Inhuman Conditions in 1382 Prisons, In re [Inhuman Conditions in
1382 Prisons, In re, (2017) 10 SCC 658 : (2018) 1 SCC (Cri) 90] .
5. The historical background of the provision for bail has been elabo-
rately and lucidly explained in a recent decision delivered in Nikesh
Tarachand Shah v. Union of India [Nikesh Tarachand Shah v. Union of
India, (2018) 11 SCC 1 : (2017) 13 Scale 609] going back to the days
of the Magna Carta. In that decision, reference was made to Gurbaksh
Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] in which it is ob-
served that it was held way back in Nagendra Nath Chakravarti, In
re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 :
AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Ref-
erence was also made to Emperor v. H.L. Hutchinson [Emperor v. H.L.
Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356] wherein it
was observed that grant of bail is the rule and refusal is the exception.
The provision for bail is therefore age-old and the liberal interpretation
to the provision for bail is almost a century old, going back to colonial
days.”
On an overall conspectus of the aforesaid facts, this Court is of
the considered view that the applicant is entitled to be enlarged on bail.
Accordingly let the Applicant, Dr. Satish, charged in Case Crime
No. 428 of 2017 under sections 308, 466, 468, 469, 471, 120-B IPC
and Section 7/13 of Prevention of Corruption Act, Police Station

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Gulharia District Gorakhpur be enlarged on bail upon his furnishing a
personal bond and two reliable sureties of the like amount to the
satisfaction of the court concerned subject to the following additional
conditions which stand imposed in the interest of justice: -
(i) The applicant shall not tamper with the evidence or threaten the
witnesses.
(ii) 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.
(iii) 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
his under Section 229-A of the Indian Penal Code.
(iv) 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.
(v) 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: - 15.05.2018 (Yashwant Varma, J.)
nethra