Jammu & Kashmir High Court – Srinagar Bench
Asif Latief Naik S/O Latief Ahmad Naik vs Union Territory Of J&K Through on 1 January, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through Virtual Mode)
CrlA(D) No.74/2024
Asif Latief Naik S/O Latief Ahmad Naik
R/O Babbapora, Zainapora, Shopian.
...Appellant(s)
Through: Mr. Parvaiz Nazir, Advocate.
Vs.
Union Territory of J&K through
SHO P/S Keller Shopian.
...Respondent(s)
Through: Mr. Mohsin Qadri, Sr.AAG with
Mr. Faheem Nisar Shah, GA.
HON'BLE THE CHIEF JUSTICE
CORAM:
HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
ORDER
01.01.2025
Per Chowdhary, J.
1. Through the medium of this Appeal, the appellant seeks setting aside
of the order dated 12.09.2024 (impugned order) passed by the court
of learned Special Judge (Designated NIA court for Shopian-
Kulgam) at Kulgam (hereinafter referred to as ‘Trial court’),
whereby the application moved by the appellant, as accused, for
grant of short bail on medical ground, in a case titled ‘UT of J&K Vs.
Aqib Hussain Nanda & Ors.‘, arising out of FIR No.83/2022
registered at Police Station Keller, for the commission of offences
Page |2
punishable under Sections 302, 34 IPC, 18, 19, 38, 39 UA(P) Act,
7/27 Indian Arms Act, s, was rejected.
2. The appellant-accused, as pleaded, was arrested on 17.01.2023 in the
aforesaid case and during his long incarceration he developed some
ailments and, as such, had moved an application for grant of bail on
medical grounds before the trial court, who vide impugned order
rejected the bail application observing therein that there is no
provision in the Criminal Procedure Code with respect to short term
bail; that the appellant-accused stands arrested in the case on account
of receiving money from one of the co-accused, as alleged by the
respondent, however, the appellant- accused without touching the
merits of the case approached the trial court only on account of
medical emergency, as he was suffering from
‘Orchidectany/Orchidopexy’, having severe body pain and the
doctors had advised treatment by surgical intervention; that the
appellant-accused had undergone surgery which, however, resulted
into failure and the appellant-accused again faced severe pain in the
abdomen and other body parts and after consultation with the
doctors, it was advised by the surgeons for fresh surgery; that in
view of the earlier surgery conducted on the appellant-accused and
no proper care being taken in the jail, another surgery had to be
conducted on him on 10.11.2024; that he requires post surgery care
being managed by his family members; that as per the advice of the
doctors, third surgery was also proposed to be conducted on the
appellant-accused.
3. It has been further pleaded that the protection of life is of paramount
consideration in view of Article -21 of the Constitution of India and
Page |3
a liberal approach is required to be taken with respect to short term
bail on account of medical emergency; finally it was prayed that the
impugned order be set aside and the appellant-accused be admitted
to short term bail for a period of four months so that his post surgery
is taken care of and managed properly by his family members.
4. The appellant-accused has placed on file his medical record i.e.,
Inpatient case sheet of Government SMHS Hospital Srinagar, which
reveals that the appellant-accused was admitted in the said hospital
on 27.06.2024 as a case of left UDYC(L) testis and that he was
operated for ‘Orchidectany/Orchidopexy’ disease. The appellant-
accused on developing some problem in surgery was again admitted
on 01.10.2024 in the same hospital and was discharged on
05.10.2024 after being managed conservatively.
5. The appellant had also placed on record a copy of certificate issued
on 13.11.2024 by a group of doctors of the Department of Surgery,
Government Medical College, Srinagar, headed by HoD, stating that
the appellant-accused was initially operated on 29.06.2024, however,
he was again admitted in the said hospital on 01.10.2024
complaining of ‘Mesh infection’, which was managed conservatively
and he was discharged on 05.10.2024; that he was again admitted on
06.11.2024 for ‘Mesh infection’ and was operated on 09.11.2024
and the descending loop colostomy was done and after a detailed
discussion with Dr.Attri, HoD of SUIII, the appellant-accused has to
go for another surgery after 6 to 8 weeks as reversal of descending
loop colostomy, if post operative period remains uneventful.
6. During the pendency of the Appeal, the counsel for the respondent
was directed to verify with regard to the ailment of the appellant-
Page |4
accused and to place on record information received from the
concerned medical authorities. The learned counsel for the
respondent has placed on record a copy of the certificate dated
13.11.2024 issued by the group of doctors of Government Medical
College, Srinagar, thus verifying the documents placed on record by
the appellant-accused.
7. The appellant-accused had moved an application before the trial
court with a plea for grant of short bail so as to take care of his
health in view of his operations already conducted and proposed to
be conducted on him, however, the trial court vide impugned order
making the observation that there is no concept of short term bail in
CrPC and that the courts have granted bail on humanitarian grounds
under exceptional circumstances irrespective of the accusation and it
has not to be granted as a matter of routine. It was further observed
that the appellant-accused was being treated in the jail, regular
medical consultation was being provided, and surgical intervention
etc. are conducted on need basis and even future line of treatment
was already in place. Therefore, under these circumstances raised by
the applicant/appellant herein, did not call for such indulgence, as
such, the application merits outright rejection and was, accordingly,
rejected.
8. Heard and considered.
9. Learned counsel for the appellant-accused has argued that the
appellant-accused has already undergone two surgical operations in
view of his complicated ailment and that a third surgery, as per the
certificate of the doctors dated 13.11.2024 was proposed to be
conducted after 6-8 weeks as reversal of descending loop colostomy,
Page |5
if post operative period remains uneventful, and it was prayed that
the impugned order passed by the trial court, declining the relief of
short bail, be set aside and the appellant-accused be admitted to short
bail so that he may take care of his health at such a young age of 20
years.
10. Learned counsel for the respondent, on the other hand, argued that
the appellant-accused has been charged of heinous offences
including that of murder, as such, in case of grant of bail he may
abscond, jump over the bail and may not face trial of the case and
that since two surgical interventions have already been made on the
appellant-accused during his detention and the third proposed
surgery can also be conducted while appellant-accused being in
detention. He has strongly opposed grant of bail even for a shorter
period and prayed that the Appeal be dismissed and the impugned
order, passed by the trial court in consonance with law, be upheld.
11. In view of the medical record placed on file including
opinion/certificates of the surgeons, the appellant-accused had
suffered the ailment during his detention and surgical interventions
were conducted on him and a third one is also proposed to be
conducted on him within two months from the last date as on
13.11.2024.
12. Ordinarily, the consideration that the sickness is such that it cannot
be adequately or effectively treated in the prison hospital / medical
facility attached to the prison, weighs with the Court. The degree of
sickness bears upon the exercise of discretion. If it is a life
threatening disease, the Court would be well advised to exercise its
discretion. Conversely, it cannot be said that the provision cannot be
Page |6
resorted to in the case of sickness which is not life threatening.
Essentially, the question of sickness, or for that matter infirmity, is
rooted in the thickets of facts of the given case.
13. Various Courts have enunciated judgments on this issue from time to
time. One of the judgment passed by the Hon’ble High Court of
Bombay in a case titled ‘Dr. P.V.Varavara Rao Vs. NIA & Anr.“,
decided on 13.04.2022, is relevant on the subject, wherein the
accused, who was booked under Sections 13, 16, 18, 18-A, 20, 38,
39 and 40 of UAPA, was granted bail for six months on medical
grounds.
14. A short bail or an interim bail is thus, recognized form of bail, on
some humanitarian grounds, such as, medical emergency,
bereavement in family or wedding of a close relative for
performance of rituals, are some of the examples where such
intervention is made possible.
15. The appellant-accused, in view of the medical record made available
by him and verified by the other side, reveals that the appellant-
accused is suffering from the ailment which is being treated by the
surgical intervention, two of which have already been performed and
third is proposed to be conducted in the month of January, 2025, as
per the certificates issued by the doctors.
16. This Court is cautious of the fact that the appellant-accused has been
charged of the heinous offences and rigor of Section 43-D(5) of
UAPA is also applicable in the matter. However, without going into
the merits of the case, gravity of the offences and severity of the
punishment, the plea for grant of short bail on medical grounds is
Page |7
being considered in view of the ailment, which the appellant-accused
is suffering from.
17. Viewed thus, in our considered opinion, the appellant-accused is
entitled to grant of bail for a short period for his medical treatment
including surgical procedure to be conducted on him, as advised by
the doctors.
18. The appellant-accused has thus, made out the case for grant of short
bail. As a result, the Appeal on hand is allowed and the impugned
order passed by the trial court is set aside. The appellant-accused is,
therefore, ordered to be released on bail for a short period of three
months on medical grounds enabling him to undergo surgery of his
own satisfaction, however, subject to furnishing of bail and personal
bonds, to the satisfaction of the trial court on the following
conditions that the appellant-accused shall:-
a) appear in person before the trial court on each and every
date of hearing without fail;
b) not leave the territory of the Valley of Kashmir without
prior permission of the trial court;
c) not tamper with the prosecution evidence in any manner;
d) not change his place of residence until permitted by the
trial court;
e) not indulge in any criminal activities;
f) surrender himself immediately after the conclusion of
period of short bail of three months on 01.04.2025,
before the trial court, for being remanded to judicial
custody.
Page |8
19. Disposed of, as indicated above.
(M. A. CHOWDHARY) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE
Srinagar
01.01.2025
Muzammil. Q
Whether the Judgment/Order is reportable: Yes / No
[ad_1]
Source link