Jammu & Kashmir High Court – Srinagar Bench
Parvaiz Ahmad Hanga vs Union Territory Of J&K And Anr on 6 June, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH 2025:JKLHC-SGR:178
AT SRINAGAR
Bail App No. 155/2024
Reserved On: 25th of March, 2025.
Pronounced On: 06.06.2025
Parvaiz Ahmad Hanga
... Petitioner(s)
Through: -
Mr Sajjad Ashraf Mir, Advocate.
V/s
Union Territory of J&K and Anr.
... Respondent(s)
Through: –
Mr Rais-ud-Din Ganai, Dy. AG.
CORAM:
Hon’ble Mr Justice Rahul Bharti, Judge
(JUDGMENT)
1. The petitioner-Parvaiz Ahmad Hanga, acting through
his wife Tabasum Parviaz, has come forward, as an
undertrial in custody, invoking jurisdiction of this
Court under section 483 of the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023, for seeking bail in a
criminal case initiated by reference to FIR No.
23/2024 registered by the Police Station, Lar District
Ganderbal, undergoing trial before the Court of
learned Principal Sessions Judge, Ganderbal.
2. It is by reference to an incident of 21st of May, 2024
that the registration of FIR No. 23/2024 of the Police
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Station Lar had taken place when a motor cycle No.
JK04C 1974 upon being signalled to stop at a police
naka set up at Yenhama, Lar driven by a motor cyclist
tried to flee but got caught resulting in search and
discovery of polythene bag containing three (03)
bottles of Tusklis-T leading to further discovery of
facts in interrogation that there are other persons
involved in the illicit activities.
3. The petitioner was not the one who was allegedly
caught with the alleged illicit drug in said naka
incident but came to be implicated on the basis of the
alleged statement of the culprit motor cyclist-Dawood
Ahmad Rather that the alleged illicit drug was
received by him from the petitioner.
4. The petitioner, upon being arrested by the
Investigating Officer (IO) of Police Station Lar, is said
to have confessed that he was dealing in the narcotic
business illegally and that is how the petitioner came
to be put up for trial as one of the co-accused.
5. The petitioner is said to be carrying a medical history
at the time of his arrest and, as such, during the
course of his custody medical complications related to
him came to be observed which resulted in the
petitioner being taken by the Jail/Police Authorities
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to medical treatment to the referral Police Hospital,
Srinagar.
6. The petitioner came to apply to the trial court of
learned Principal Sessions Judge, Ganderbal for bail
on medical grounds.
7. The trial court of learned Principal Sessions Judge,
Ganderbal reckoned the compulsion and constraint of
keeping the petitioner in custody on account of nature
of alleged offences slapped against him outweighing
the consideration of releasing the petitioner on bail on
medical grounds as reported and related to his health.
8. In its order dated 11th of December, 2024, the court of
learned Principal Sessions Judge, Ganderbal has
reproduced the extract of the health status report of
the petitioner confirmed by the medical team of
doctors who attended upon the petitioner while in the
state of custody and the same is reproduced as under:
“The health status report states that on 10-07-
2024 the inmate was referred to Police Hospital
Srinagar. The X-Ray is showing normal study, and
USG abdomen is suggestive of fatty liver Grade-1,
small Hyperechoic lesion seen in left lobe,
uncontrolled blood sugars. He was managed
conservatively.
On 10-08-2024 the inmate was referred to
Police Hospital Srinagar for follow-up. On 16-09-
2024, the inmate was referred to Police Hospital
Srinagar again for follow up and on 05-10-2024 he
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was again referred to Police Hospital Srinagar for
follow up/check-up.
It is further submitted in the health status
report on 08-10-2024 that the inmate was referred
to Superspeciality Hospital Shireen Bagh Srinagar
for Urological/Nephrological consultation. He was
examined by consultant Urogram. He was further
advised Urological consultation. He was also
examined by consultant Urologicst who after
examination advised medication and CECT
abdomen/pelvis and Urogram. On 25-11-2024, the
inmate was again referred to Superspeciality
Hospital, Srinagar for CECT Abdomen/Pelvis with
Urogam. The consultant Radiologist in view of
raised creatinine advised Nephrological clearance
for the above said investigation. The consultant
Nephrologist after examination advised medication
and further advised to wait for one week. On 09-
12-2024 CT Urogram was done and the report
reveals no residual lesion/rest unremarkable
study.”
9. The petitioner’s medical condition is critical which fact
is beyond any cavil and for that this court needs not
to go into any sort of appraisal just for the sake of
doing some filling to this judgment.
10. In a case related to grant or denial of bail on medical
grounds to an accused person under legal custody, be
pre-trial or pending trial, the court, be it trial court or
the High Court, when approached in the matter is
invariably caught in a double bind situation.
11. The ponderable aspect in such a situation is to weigh
whether to let an ailing and sick accused person
under custody to get the medical treatment as per the
Prison/Jail’s protocol, without being enlarged on bail
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for enabling him to fend for himself or herself, and
thereby let the situation become progressively
aggravated then to be left later with no other option
except to let the ailing/ sick accused to be granted a
duration bail to be co-timed with the medical
treatment so as to enable the ailing/ sick accused and
his or her family members to act upon the self efforts
and expenses at their own disposal to get the ailing/
sick accused medically attended and convalesced or
to have a very realistic assessment of the ailing/ sick
accused person’s reported medical condition while in
custody state and take a timely and preemptive call to
grant bail for a duration so as to enable the ailing/
sick accused to get himself or herself medically
treated as early as possible before medical
aggravations and complications set in with respect to
his/her health condition.
12. With the state of failing health of an ailing/ sick
accused person under custody, his/ her immediate
family, be it parents, spouse, children or near
relatives, as the case may be, are equally and directly
concerned without a miss besides the ailing/ sick
accused person himself or herself being under
unceasing concern notwithstanding the medical
attention being provided by the Jail authorities.
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13. Drawing from practical understanding and
experience, even the jail authorities may, in any given
case, in very realistic terms nurse a concern for an
ailing/sick under trial person in custody and intend
his or her family members/relatives to be proactive
and involved so as to get the ailing/sick accused
person not only medically but personally attended for
his or her quick recovery and betterment.
14. Prison system and administration in India, in terms of
its infrastructure and resources, is ever over-
burdened and over-stretched with shortage of space
and manpower to deal with crowd of prisoners in
routine. In such like scenario to expect an ailing/sick
prisoner with an aggravating medical condition to get
and receive full and timely care and attention of the
jail authorities without fail would be a utopian rather
than a realistic expectation.
Case law with respect to bail on medical grounds:
15. In the case of ‘Amar Sadhuram Mulchandani v.
Directorate of Enforcement & Anr. (2024 SCC
Online SC 4408)’, the Hon’ble Supreme Court of
India came to grant indulgence by enlarging the
petitioner in the said case on interim bail based upon
medical condition of the petitioner reported by the
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medical team at Sir JJ Group of Hospitals, Mumbai.
The petitioner in that case was 67 years old sick
person suffering from diabetes, hypertension, chronic
kidney disease and ischemic heart disease and his
condition becoming bad while in state of custody as
an under-trial.
16. In the case of ‘Satinder Kumar Jain v. Directorate
of Enforcement (2023 SCC Online SC 686)’, the
Hon’ble Supreme Court of India relied upon the
medical report of GB Pant Institute of Post-Graduate
Medical Education and Research with respect to
medical condition of the petitioner being an under-
trial and showing indulgence to release on interim bail
on medical grounds by reckoning the fact that a
citizen is having a right to take treatment of his choice
at his own expenses in a private hospital.
17. In the case of ‘State of Uttar Pradesh v. Gayatri
Prasad Prajapati‘, the Hon’ble Supreme Court of
India in its order dated 15th of October, 2020 in
disposing of Criminal Appeal No. 686/2020 has
registered a caveat which is meant for due cognizance
that even in the matter of granting bail on medical
grounds, the totality of the facts and circumstances of
the case are to be kept in due perspective including
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the satisfaction that treatment offered to an under-
trial for medical ailment while in state of custody
being not adequate warranting further treatment by
any particular medical institute necessitating the
release of an under-trial on interim bail on medical
grounds. The Hon’ble Supreme Court of India
reiterated that there can be no two views with regard
to proposition that human treatment to all including
an accused is requirement of law and a prisoner who
is suffering from an ailment has to be given due
treatment and care while in prison.
18. In the case of ‘Dipak Shubhashchandra Mehta v.
Central Bureau of Investigation and Anr. [2012 (4)
SCC 134]’, the Hon’ble Supreme Court of India has
delved on the matter of grant of bail to an under-trial
on medical grounds. In this case, the petitioner was
the Joint Managing Director of Vishal Exports
Overseas Limited, a Public Limited Company, against
which due to non-payment of advances availed from
various Banks criminal complaints came to be filed
involving the promoters and directors and one of the
FIRs was by Central Bureau of Investigation (CBI) for
commission of offences under sections 406, 420, 467,
468 and 471 read with 120-B of the Indian Penal
Code (IPC), 1860 resulting in arrest of the petitioner
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on 31st of March, 2010 followed by police custody and
judicial custody. The petitioner in the said case stood
granted temporary bail on three occasions on medical
grounds. Upon presentation of the charge sheet by the
Central Bureau of Investigation (CBI) involving the
petitioner as accused No.4, being an under-trial, an
application was preferred before the trial court
seeking bail which was dismissed and an attempt on
the part of the petitioner in the said case to seek
regular bail from the High Court of Gujarat had
resulted in failure. The petitioner again came to be
arrested in another FIR in which a charge sheet was
submitted but again the petitioner was released on
temporary bail. An attempt on the part of the said
petitioner in seeking regular bail suffered failure
which resulted in the matter landing before the
Hon’ble Supreme Court of India in which a point for
consideration came to be formulated as to whether
the petitioner had made out a case for regular bail
and whether the High Court is justified in dismissing
his application. The Hon’ble Supreme Court of India
came forward to reiterate the position of law that
orders granting/ refusing bail by the High Courts are
not ordinarily admissible to be interfered with save in
exceptional cases. The medical condition of the
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petitioner was put forth to the effect that he was
having uncontrolled high blood pressure with thirty
percent blindness in his right eye and having
undergone a surgery for vitreous hemorrhage which
had re-occurred for which the medical advice was to
go for second surgery to save his eyes. During the
period of his custody, the petitioner in the said case is
said to have suffered obstruction jaundice requiring
long intensive treatment thereby rendering the
petitioner in a condition making out a case for his bail
on medical grounds. The Medical Officer of the
Central Jail Dispensary Ahmedabad had also certified
that the petitioner in the said case needed treatment
from Specialist/Super-Specialist/ Cardiologist/
Gastroenterologist/ Ophthalmologist for his multiple
problems. In paragraphs No. 32, 33 and 34, the
Hon’ble Supreme Court of India came forward with
the observations which are worth reproducing herein
as under:
“32. The court granting bail should exercise
its discretion in a judicious manner and not as a
matter of course. Though at the stage of granting
bail, a detailed examination of evidence and
elaborate documentation of the merits of the case
need not be undertaken, there is a need to indicate
in such orders reasons for prima facie concluding
why bail was being granted, particularly, where the
accused is charged of having committed a serious
offence. The court granting bail has to consider,
among other circumstances, the factors such as (a)
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the nature of accusation and severity of
punishment in case of conviction and the nature of
supporting evidence; (b) reasonable apprehension
of tampering with the witness or apprehension of
threat to the complainant; and (c) prima facie
satisfaction of the court in support of the charge.
In addition to the same, the court while
considering a petition for grant of bail in a non-
bailable offence, apart from the seriousness of the
offence, likelihood of the accused fleeing from
justice and tampering with the prosecution
witnesses, have to be noted.
33. Considering the present scenario and that
there is no possibility of commencement of trial in
the near future and also of the fact that the
appellant is in custody from 31-3-2010, except the
period of interim bail i.e. from 15-9-2011 to 30-11-
2011, we hold that it is not a fit case to fix any
outer limit taking note of the materials collected by
the prosecution. This Court has repeatedly held
that when the undertrial prisoners are detained in
jail custody to an indefinite period, Article 21 of the
Constitution is violated.
34. As posed in Sanjay Chandra case, we are
also asking the same question i.e. whether the
speedy trial is possible in the present case for the
reasons mentioned above.”
19. In the case of ‘Mangilal Thakur v. State of Madhya
Pradesh (2022 SCC Online SC 1066), interim bail for
a period of thirty (30) days on medical grounds came
to be granted by the Hon’ble Supreme Court of India.
20. The Hon’ble High Court of Delhi in the case of ‘Nitish
Kumar v. Directorate of Revenue Intelligence (Bail
Application No. 2072/2023)’, in its judgment dated
29th of August, 2023, dealing with the grant of bail on
medical grounds in favour of an under-trial accused
with accusation of having made efforts to get four
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containers cleared containing a total 34.7 kgs of
heroin, came to deal with the examination and
elements of bail on medical grounds. In paragraph No.
16 of its judgment, the Single Bench of the High Court
of Delhi has observed that the health of the petitioner
has to be given primacy as it is his fundamental right
to be given adequate and effective treatment whilst in
jail but in case specialized or sustained treatment and
care are necessary which are not possible whilst in
jail the petitioner is entitled to the benefit of interim
bail on medical grounds.
21. In the case of ‘Sameer Mahandru v. Directorate of
Enforcement‘, the High Court of Delhi in dealing with
Bail Application No. 1343/2023 read with Crl.M.A.
10859/ 2023 came to deal with the case of an under-
trial/ arrestee having medical issues related to his
health by a long deliberation on the matter. In this
case, the High Court of Delhi came to pose a question
as to whether the petitioner is entitled to interim bail
as being sick or infirm in terms of proviso to section
45 (1) of the prevention of Money Laundering Act,
2002. This issue was examined in conjunction with
section 437 of the Code of Criminal Procedure, 1973,
as was then in force, by identifying the nature of
sickness or infirmity envisaged for enabling grant of
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bail in favour of an arrestee. The Hon’ble High Court
of Delhi came to refer to its previous judgment in the
case of ‘Kewal Krishan Kumar v. Enforcement
Directorate‘, neutral citation No. 2023:DHC:1925, in
which it came to be held that sickness or infirmity is
to be of such a nature that it is life threatening and
requires medical assistance that cannot be provided
in penitentiary hospitals. The observations of the
Hon’ble High Court of Bombay in the case of
‘Mahendra Manilal Shah v. Rashmikant
Mansukhlal Shah (2009 SCC Online Bom 2095)’,
came to be referred as to the nature of sickness to be
seen as to whether an accused as an arrestee can be
treated in Government hospital in custody. The High
Court of Delhi came to hold that a cumulative
consideration of the legislative intent of the PMLA and
precedents indicates that proviso to section 45 (1) is a
relaxation to the sick or infirm persons provided that
sickness or infirmity is so grave that it is life
threatening and cannot be treated by jail hospitals. It
has been observed by the High Court of Delhi that
discretionary power of the court in granting bail in
relation to a sick or infirm person should not be
exercised at the last breathing stage, but when
adequate treatment is warranted for the accused
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persons with ailment. In paragraphs No. 50 and 51 of
its judgment, the High Court of Delhi has come to
observe that health condition of a human being
deserves utmost importance and right to health is one
of the most significant dimensions of article 21 of the
Constitution of India entitling him to a right to get
himself adequately and effectively treated in which
connection exercise of discretion of grant of bail is not
to be exercised only as a last resort but by reckoning
that freedom is a cherished fundamental right.
22. The High Court of Delhi again in the case of ‘Sanjay
Jain v. Enforcement Directorate‘, in its decision
dated 5th of June, 2023 in Bail Application No.
3807/2022, again came to deal with grant of bail in
favour of an under trial/ arrestee on medical grounds.
In paragraphs No. 14 and 15, the Hon’ble High Court
of Delhi came to bear in perspective the position of
law settled on the issue of grant of bail on medical
grounds by the judgments of the Hon’ble Supreme
Court of India. In paragraph No.22 of its decision, the
High Court of Delhi came to identify Article 21 of the
Constitution of India providing for protection of life
and personal liberty which right is not meant to be
curtailed, except according to procedure established
by law in which regard liberty of a person who is
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accused or convicted of an offence can be curtailed
according to procedure established by law but right to
health, also recognized as an important facet of Article
21 of the constitution of India, is meant to sub-serve a
person who is an under-trial or for that matter even a
convict lodged in a jail by making it an obligation
upon the State to provide adequate and effective
medical treatment to every person lodged in jail. In
this judgment also, the nature of sickness envisaged
to be a ground for grant of bail to an accused/
arrestee came to be taken up to come to a point of
exposition that a sickness co-related with grant of bail
on medical grounds has to be one which is life
threatening warranting specialized treatment not
available in jail hospital/s.
23. Now coming to the take of our own High Court of
Jammu & Kashmir and Ladakh on the issue of grant
of bail on medical grounds, this Court in the case of
‘Amarjeet Singh v. State of J&K and Anr. (2019
SCC Online J&K 177)’ came to examine the medical
condition of the petitioner in the said case to hold that
he was not suffering from any fatal life threatening
disease requiring specialized treatment not available
in the jail for enabling him to earn bail on medical
grounds but reserved a right in his favour to apply for
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bail before the trial court on medical grounds if in
future he would suffer any serious complication.
24. In the case of ‘Sajad Ahmad Bhat v. UT of J&K
through Police Station Bijbehara (2022 SCC Online
J&K 453)’, the petitioner in the said case was
confirmed to be suffering from serious ailment under
regular treatment of Government Medical College
(GMC), Anantnag without any improvement in the
health condition of the petitioner for which immediate
surgery came to be advised. By reference to section 37
of the Narcotic Drugs and Psychotropic Substances
(NDPS) Act, 1985 related to the grant of bail, read
with section 439 of the Criminal Procedure Code,
1973, the learned Single Bench of the High Court of
Jammu & Kashmir and Ladakh came to dislodge the
observations of the learned Sessions Judge that the
bail on medical grounds cannot be granted to the
petitioner of the said case as he was involved in a
heinous offence. The petitioner came to be granted
bail on medical grounds by this Court by referring to
the latest medical report.
25. Keeping in view the factual aspect of the present case
relatable to the medical condition of the petitioner and
the legal position relatable to grant of bail on medical
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grounds, this Court comes to a confirmed situation
that the kidney functioning of the petitioner is
compromised and that requires not only recurring
medical monitoring but also attention, specialized
medical treatment and care which in the state of
petitioner, being in custody as an under trial, may not
be possible to be administered to the petitioner and,
as such, may risk the health and life of the petitioner
at any given point of time and, therefore, a case is
made out for indulgence of this Court in granting bail
to the petitioner.
26. The petitioner is hereby granted bail for a duration of
four months subject to the furnishing of bond,
personal as well as surety, to an amount of Rs. 5 lac
each to the satisfaction of the court of Principal
Sessions Judge, Ganderbal who shall also settle terms
and conditions of the bail hereby granted by this
Court and then enlarge the petitioner on bail. Any
further extension of bail upon expiry of period of four
months, is to be considered by the learned trial court
on the basis of assessment of medical condition and
reports related to the petitioner.
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27. Copy of this judgment be forward by the Registrar
Judicial, Srinagar to the court of Principal Sessions
Judge, Ganderbal for notice and compliance.
28. The petitioner shall also be at liberty to produce
certified copy of this judgment for the notice and
compliance at the end of the court of Principal
Sessions Judge, Ganderbal.
29. Disposed of.
(Rahul Bharti)
Judge
SRINAGAR
06.06.2025
“TAHIR”
i. Whether the Judgment is approved for reporting? Yes.