Karnataka High Court
Sri. Asif vs The State Of Karnataka on 30 January, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1946 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
CRIMINAL APPEAL No.1946 OF 2022 (NIA)
BETWEEN:
1. SRI. ASIF,
S/O HUSEN SAB YALIVALA,
AGED ABOUT 42 YEARS,
R/AT NEW ANAND NAGAR,
NEAR MADHANI MOSQUE,
OLD HUBBALLI-582104.
...APPELLANT
(BY SRI. AMAR CORREA., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
OLD HUBBALLI POLICE STATION,
HUBBALLI, DHARWAD DISTRICT-582104,
Digitally signed REPRESENTED BY SPL. PUBLIC PROSECUTOR,
by MALATESH HIGH COURT OF KARNATAKA,
KC BANGALORE-560001.
Location: High ...RESPONDENT
Court of
Karnataka (BY SRI V.M. SHEELAVANT, SPECIAL PUBLIC PROSECUTOR)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21 OF
THE NATIONAL INVESTIGATION AGENCY ACT BY THE
APPELLANT PRAYING TO SET ASIDE THE ORDER DATED
03.10.2022 PASSED BY THE XLIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES)
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CRL.A No. 1946 of 2022
(CCH-50), BENGALURU, REJECTING THE BAIL APPLICATION
FILED BY THE APPELLANT SEEKING FOR REGULAR BAIL AND
ALSO INTERIM BAIL IN C.R.No.63/2022 (NOW NUMBERED AS
SPL.C.C.No.2263/2022) ON MEDICAL GROUNDS, VIDE
ANNEXURE-A .
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is posted for admission, with the consent of the learned counsel for the appellant and the learned Special Public Prosecutor, it is taken up for final hearing.
The present Criminal Appeal is filed under Section 21 of the National Investigating Agency Act, challenging the common Order dated 03.10.2022 passed in Crime No.63/2022(now numbered as Spl.C.C.No.2263/2022) on the file of the XLIX Additional City Civil and Sessions Judge, (Special Judge for trial of NIA cases) (CCH-50), Bengaluru, rejecting the application filed by the appellant/accused No.40 under Section 439 of the Code of Criminal Procedure, seeking regular bail and also another application under the same provision, for interim bail. -3- CRL.A No. 1946 of 2022
2. It is the case of the prosecution that, police registered a case against the appellant for the offences punishable under Sections 123, 143, 147, 148, 323, 307, 324, 333, 353, 504, 506, 427 r/w Section 149 of the Indian Penal Code, Section 3(c) of the Prevention of Damages to Public Properties Act, 1984 and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. The appellant has sought for bail mainly on medical ground contending that he is in judicial custody since 17.04.2022. While in custody, the appellant was admitted to Gulbarga Institute of Medical Sciences Hospital, Kalaburagi, from 07.09.2022 to 16.09.2022 for uncontrolled hypertension with right Hemiplegia (paralysis of one side of the body) and was discharged on 16.09.2022. The report of the doctor indicates that the appellant urgently needs MRI brain scan with MRA with MRE and MRI whole spine screening. Therefore, he needs proper medical care and treatment so as to recover from the diagnosed illness and, continued custody of the appellant may add up to the already worsened health condition of the appellant and may gradually affect his life. It is further stated that paralysis illness can be treated by proper physiotherapy which can fully cure the person affected, if not, -4- CRL.A No. 1946 of 2022 he may have to suffer the illness of paralysis for rest of his life or for longer time and only a proper medical treatment outside can cure the disease. Therefore, he filed the applications.
3. The applications were strongly opposed by the State contending that the application filed by the appellant and others was dismissed by the co-ordinate Bench of this Court in Criminal Petition No.101632/2022 and connected matters, by the Order dated 30.06.2022. The appellant is being provided necessary medical treatment not only inside the jail but also at GIMS Hospital, Kalaburagi and jail authorities are taking necessary steps to comply with advisory measures. Thereby, contended that the appellant is not entitled to bail on medical grounds.
4. The learned Sessions Judge, considering both oral and documentary evidence on record, recorded a finding that, "it is evident from the records that there are reasonable grounds to believe that the materials produced before the Court against accused No.40 are prima facie true. Hence, there is a clear embargo on this Court to grant bail to accused No.40. This is not a fit case to exercise discretion under Section 439 of Code -5- CRL.A No. 1946 of 2022 of Criminal Procedure and the applications filed by accused No.40 are liable to be rejected." Accordingly, rejected the applications. Hence, the present Criminal Appeal is filed by the appellant/accused No.40 under the provisions of Section 21 of the National Investigating Agency Act.
5. We have heard the learned counsel for the parties.
6. Sri Amar Correa, learned counsel for the appellant/ accused No.40 contended with vehemence that the learned Sessions Judge rejected the bail application on merits without considering the medical records. The learned Sessions Judge has not looked into the medical records produced before the Court and proceeded to reject the application mainly on the ground that there is prima facie case against the appellant and his bail petition was earlier rejected and thereby, he is not entitled to bail. The same is erroneous and contrary to material on record. He further contended that the appellant produced the medical records including article published by the International Journal of Health Sciences and Research on "Evolution in Hemiplegic Management: A Review", vide Annexure-H, which indicates that the "aim of rehabilitation in -6- CRL.A No. 1946 of 2022 subjects with hemiplegia is to promote recovery of lost function, independence and early reintegration into social and domestic life. Stroke rehabilitation is the process by which those with disabling strokes undergo treatment to help them return to normal life as much as possible by regaining and relearning the skills of everyday living". Thereby, learned counsel submits that rehabilitation can be done and managed at home with the help of family members. The said aspect is not considered by the learned Sessions Judge. Therefore, sought to allow the appeal.
7. Sri V.M.Sheelvant, learned Special Public Prosecutor, while supporting the Order passed by the learned Sessions Judge, contended that, there is prima facie case against the accused and thereby, the Sessions Judge rejected the bail application.
8. When the matter came up before this Court on 09.01.2023, this Court directed the Special Public Prosecutor to produce the legible copy of the report along with brief statement of the Jail Superintendent as to whether the accused is attached to the wheel chair temporarily or for life long. In -7- CRL.A No. 1946 of 2022 the meanwhile, it was directed to issue reminder to the concerned Jail Superintendent to send the legible report with proper information with regard to medical condition of the accused. Accordingly, the letter of the Chief Jail Superintendent, Central Prison, Kalaburagi, dated 07.01.2023 along with report of the Chief Medical Officer, Central Prison Hospital, Kalaburagi, dated 07.01.2023 is furnished to the Court, which reads as under:
"He was referred to Gulbarga Institute of Medical Science (GIMS) Hospital Kalaburagi, for detailed investigations and treatment advise by the specialist.
Admitted on 07-09-2022 to 16-09-2022 in GIMS Hospital Kalaburagi, diagnosed as suffering from Cerebro-Vascular-Accident (CVA)-Ischemic stroke in Middle Cerebral Artery territory with uncontrolled hypertension vide IPD No- 202224745. Treatment advised accordingly. The treating physician of GIMS Hospital Kalaburagi has referred him to the higher centre for further investigations- Magnetic Resonance Imaging (MRI) of brain with Magnetic Resonance Angiography (MRA) with Magnetic Resonance Elastography (MRE) with MRI of whole spine screening at Bengaluru and treatment -8- CRL.A No. 1946 of 2022 advise by the neurophysician. Vide Letter No MRD/Prison/308/2022. Dated 16-09-2022.
Admitted on 24-09-2022 to 03-10-2022 in GIMS Hospital Kalaburagi in medicine ward (Prison Ward) for the treatment of his uncontrolled hypertension with right sided hemiplegia vide IPD no-26631.
Admitted on 24-10-2022 to 26-10-2022 in GIMS Hospital Kalaburagi and diagnosed as suffering from CVA with multiple acute infarcts in bilateral posterior limb of internal capsule and bilateral cerebrum semiovale with hypertensive emergency. Vide IPD No-202229848.
He was sent to GIMS Hospital Kalaburagi for follow up check up and treatment advise for the accelerated hypertension on 20-11-2022. Vide UHID No-20220255416."
9. The aforesaid report is not disputed by learned Special Public Prosecutor and he would fairly submits that on medical and humanitarian grounds, appellant may be enlarged on bail. The submission is placed on record.
10. Without adverting to the merits and demerits of the case, the application filed by the appellant/accused No.40 under -9- CRL.A No. 1946 of 2022 Section 439 of the Code of Criminal Procedure seeking regular bail, has to be allowed, only on medical grounds in view of the specific report of the Chief Medical Officer, Central Prison Hospital, Kalaburagi, stated supra, to meet the ends of justice. The appellant/accused No.40 has to bear in mind that the illness he is suffering now is just an alarm for the wrong done by him and sign of the providence and he should reform himself to become a good citizen of this Country.
11. In view of the aforesaid peculiar facts and circumstances of the case, Criminal Appeal is hereby allowed. The impugned common order dated 03.10.2022 passed in Crime No.63/2022 (now numbered as Spl. C.C.No.2263/2022) on the file of the XLIX Additional City Civil and Sessions Judge (Special Judge for trial of NIA cases) (CCH-50), Bengaluru, is hereby set-aside.
12. The application filed by the appellant/accused No.40 under Section 439 of the Code of Criminal Procedure is hereby allowed subject to following conditions:
(i) The appellant/accused No.40-Asif, shall not leave the head quarter, without prior
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permission of the concerned Court, except for attending the hearing of Crime No.63/2022 (now numbered as Spl.C.C.No.2263/2022) pending before the XLIX Additional City Civil and Sessions Judge (Special Judge for trial of NIA cases) (CCH-50), Bengaluru.
(ii) The appellant/accused No.40 shall execute a personal bond for a sum of `1,00,000/-
(Rupees one lakh only) with two sureties for the likesum to the satisfaction of the Trial Court.
(iii) The appellant/accused No.40 shall not indulge in any criminal activities during pendency of the case before the Trial Court.
(iv) The appellant/accused No.40 shall appear before the Trial Court as and when required.
(v) The appellant/accused No.40 shall intimate
his health condition once in every two
months, to the Trial Court.
(vi) The appellant/accused No.40 shall maintain
peace and tranquility in the locality and shall not misuse the bail granted by this Court.
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CRL.A No. 1946 of 2022It is made clear that if any of the above conditions are violated by the appellant/accused No.40, the State is at liberty to file necessary application for cancellation of bail.
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