Kuldeep Singh vs Ut Of J&K on 24 November, 2022

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Jammu & Kashmir High Court

Kuldeep Singh vs Ut Of J&K on 24 November, 2022

1. Petitioner/applicant lying in judicial custody in District Jail Kathua in FIR No. 327/2014 of Police Station Kathua for commission of offences U/S 302,307,147, 148, 149 RPC r/w Section 3/25 Arms Act, has sought interim bail on medical grounds, contending therein that after his arrest i.e., during investigation of the case, the petitioner/applicant developed a serious problem in his right eye due to which his eyesight started deteriorating very fast. On this, the petitioner filed an application for his medical checkup and consequently, the petitioner was taken to the Government Medical College by the jail authorities. After his checkup the petitioner/applicant was diagnosed as a case of Vitreous Hemorrhagr with Uncontrolled IOP with loss of vision in his right eye and he was advised viteroretinal consultation at AIIMS/PGIMER Chandigarh. After presentation of the challan, the petitioner approached the trial court seeking his medical treatment in view of the aforementioned medical opinion and advise, however, the trial court got the petitioner examined from a Board of Ophthalmologists, who found the petitioner to be suffering from Post Traumatic Mydriasis with Subluxation of lens with posterior sub-capsular cataract with vitreous 2 Bail App No. 288/2022 hemorrhage with secondary glaucoma Right Eye and advised him same Viteroretinal Consultation and further opined that the above treatment was not available at Jammu, as such, the petitioner was advised to avail the facility at PGI Chandigarh/R.P.Centre, AIIMS, New Delhi. Accordingly, vide order dated 05.01.2015, the trial court directed the concerned jail authorities to get the petitioner examined and treated at PGI Chandigarh. It is further stated that despite repeated orders by the trial Court, the petitioner was not provided the required treatment as per the opinion of the Board of Doctors, the petitioner filed an application for his release on bail in the trial Court, the said application was dismissed and consequently the petitioner approached this Court being B.A No. 71/2019 and vide order dated 09.08.2019 again directed the Principal Government Medical College, Jammu to constitute a medical Board of Doctors to determine as to whether or not the petitioner‟s ailment could be managed and treated in the GMC Jammu. In compliance to the said order, second medical Board of Doctors, constituted by the Principal, GMC Jammu has opined that the ailment with which the petitioner was suffering could only be treated and managed either at PGI, Chandigarh or AIIMS, New Delhi. Finally, vide order dated 28.05.2021 allowed the bail application B.A No. 141/2020 granted the petitioner temporary bail till 11.08.2021 and allowed him to approach the trial court for further extension. Thereafter the trial court regularly extended the temporary bail of the petitioner in view of his deteriorating eye sight of both the eyes. It is further stated that on 30.08.2022, SSP Kathua filed an application in the trial Court for cancellation of petitioner‟s temporary bail which was to expire on 17.09.2022. Pursuant to which, the trial Court cancelled the bail application of the petitioner. Consequently, on 31.08.2022 the petitioner was taken into custody and now lodged in District Jail, Kathua. It is further stated that apart from the eye problem, the petitioner is also suffering from heart ailment and uncontrolled diabetes. It is further stated that the medical condition of the applicant is very miserable and he requires immediate medical treatment and the jail authorities have miserably failed to provide the petitioner proper medical treatment as no proper and expert medical 3 Bail App No. 288/2022 treatment is available to the petitioner in jail which could improve his physical condition.

2. Mr. Dewakar Sharma, learned Dy AG has objected the bail application on the ground that the present bail application is not maintainable as the petitioner has committed offences U/S 302,307,147, 148, 149 RPC r/w Section 3/25 Arms Act under FIR No. 327/2014 of Police Station Kathua. It is further stated that the Hon‟ble Apex Court has underlined the guidelines for criminal courts of the Country and laid down principles to be taken into consideration at the time of grant of bail. These principles have been embodied in (i) "Kalyan Chandra Sarkar vs Rajesh Ranjan alias Papu Yadan & Anr.", reported in (2004) 7 SCC 528, (ii) "State vs Captain Jagjit Singh", reported in AIR 1962 (SC) 253, (iii) "Gurcharan Singh vs. State Delhi Administration", reported in AIR 1978 (SC) 179. All these guidelines have distilled in a recent judgment of Hon‟ble Supreme Court in "Jayendra Saraswati Swamigal vs State of Tamil Nadu" reported in AIR 2005 (SC) 716 and basically they are the nature and seriousness of the offences, character of evidence, circumstances which are peculiar to the accused, reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tempered with and above all, larger interest of the public or the state and other similar factors which may be relevant in the facts and circumstances of each case. The allegations against the petitioners are serious; any concession of bail in favour of the petitioners would not be in the interest of the society at large. It is respectfully that it is a settled law that bail may be refused if there is likelihood of the applicant interfering with the witnesses for the prosecution or otherwise polluting the process of justice. The present bail application is thus required to be dismissed as the petitioner/accused does not require any further specialized treatment.

3. Heard and considered. The trial Court vide order dated 31.08.2022 rejected the extension of bail application of the petitioner/applicant which is impugned in the present application. Paragraphs 3 & 4 of the said order are reproduce as under:-

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"3. In this case the accused person has sought interim on serious ophthalmic problem and is undergoing treatment in PGI Chandigarh where has to go from time to time for follow up action regarding which accused/non-applicant herein has been producing medical prescriptions before this court. Now the prosecution has projected very grave and serious facts before this Court which have compelled this court to take up the matter today itself in absence of the accused for appropriate orders. The accused person has no immediate life threatening sickness as per the medical prescriptions. Accused was granted interim bail not on merits but on humanitarian/health grounds to improve upon. Therefore there is no need to call for the accused. No doubt the accused person is facing serious charges in the case undergoing trial before this court. At the same time this court on humanitarian ground had considered the request of the accused person for undergoing treatment and thereafter passed interim bail order on health grounds in his favour but it is said that old habits die very hard. The accused person apparently as per the record produced with this application has not mended his past conduct which had resulted into the commission of offence of murder allegedly by him in the same circumstances in which accused/non-applicant is presently putting himself again. There is every apprehension that situation created between the offender and victims in the year 2014 might be repeated and the courts in such circumstances cannot be mute spectators and facilitators for commission of offences. The accused person has submitted his candidature for the election of Truck Union Kathua and is reportedly also campaigning for the same which implies that he has no serious health issue as he is doing his day to today activities. The bail of the accused person was not granted on merits but only on health grounds to allow him to improve upon his health but the accused/non-applicant herein has given priority to his societal and financial commitments over his health by using the freedom of interim bail, which was not intention of this court while exercising judicial discretion.

4. Therefore, while considering all but has been discussed herein above, I am of the considered opinion that accused/non- applicant herein does not deserve to be let free on medical grounds any further. Consequently, the interim bail granted to him on 17.08.2022 is immediately withdrawn and the concerned SHO is directed to take the said accused into custody immediately and lodge him in the District Jail Kathua for facing trial in this court in the case in which date is fixed on 17.09.2022. Medical Superintendent Kathus is directed to take proper care of the health of the accused and continue to provide him the requisite treatment prescribed for him by doctors at PGI Chandigarh coupled with follow up action treatment, without any lapse or default. Accordingly the instant application is allowed and the bail application of the accused is dismissed. Be made part of the main file."

4. The medical reports annexed with the file clearly depicts, that the petitioner/applicant is suffering from ailments in the eye i.e Supero 5 Bail App No. 288/2022 Temporal Branch Vein Occlusion in left eye, so he may require vitreo retinal surgical intervention, therefore, his longer incarceration in jail would prove fatal to his life. It is apt to mention here, that "under trial prisoner‟s right to life does not diminish even a wee bit when in jail as an accused for an offence and said such person‟s health concerns have to be taken care by the state and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges‟ ink, rather, it subsists beyond the prison gates and operates until his last breath". "The most precious fundamental „right to life‟ unconditionally embraces even an under-trial". Owing to the apparent precarious health condition of accused/petitioner, it is necessary to provide him adequate and effective medical assistance. It is trite law that every accused is presumed to be innocent till his guilt is proved. Keeping of petitioner/accused in continuous detention would amount to infringement of his fundamental right of personal life and liberty, deterioration of his health which may prove fatal to the life of the accused/petitioner.

5. Considering the fact that the bail application is supported by an affidavit of the petitioner/applicant, it can be presumed that the petitioner/applicant is suffering from serious ailments and for improving the health condition of the petitioner/applicant, specialized treatment is required. Without commenting upon the merits of the case, at this stage, the petitioner/applicant has carved out a case for interim bail in his favour on health grounds only for a period of two (2) months i.e. from today upto 24.01.2023 provided he furnishes two (2) sureties in the sum of ₹.1.00 lakh (rupees one lakh) each before the Registrar Judicial of this Court, out of which one surety must be a government employee. Both the sureties will undertake the responsibility to produce the petitioner/applicant before the Superintendent District Jail Kathua on due date i.e 25.01.2023 before sunset, whereby the Superintendent District Jail Kathua shall inform this court regarding surrender/lodgment of the petitioner/applicant in the said jail, with further direction that the petitioner/applicant shall furnish his personal bond in the like amount before the Superintendent District Jail Kathua with the following conditions:-

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(i) that petitioner/applicant shall not tamper with the prosecution evidence or threaten any prosecution witnesses from deposing them before the trial Court;

(ii) that in case prosecution collects any material during the bail period of petitioner/applicant that he has influenced the prosecution witnesses or tried intimidate them, the prosecution would be well within its right to move an application before this Court for cancellation of bail of petitioner/applicant;

A copy of this order be sent to (i) the trial Court & (ii) Superintendent District Jail, Kathua for information and compliance.

6. List on 25.01.2023.

(Mohan Lal) Judge Jammu:

24.11.2022 Vijay

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Jammu & Kashmir High Court