Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Anr on 17 August, 2023
Page No.# 1/7
GAHC010153962022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/646/2023
BRAJESWAR BORDOLOI AND 4 ORS.
S/O LATE SURATH BORDOLOI
R/O VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
2: SUSHIL BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
3: SHANTI BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
4: RANJAN BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
5: JAYANTA BORDOLOI
Page No.# 2/7
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PP
ASSAM
2:KATIRAM BANGTHAI
S/O LATE ASHOK BANGTHAI
RESIDENT OF KALIYAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
------------
Advocate for : MR D K BHATTACHARYYA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 17-08-2023
(M. Zothankhuma, J)
Heard Mr. A Gautam, learned counsel for the applicant and Ms. S Jahan,
learned Additional Public Prosecutor appearing for the State respondent.
2. The applicant's counsel submits that the interim bail granted to the
applicant should be extended in view of the fact that as per the medical
certificate dated 14.08.2023 issued by the Gauhati Medical College & Hospital,
the applicant was in hospital from 10.08.2023 to 14.08.2023 due to
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cerebrovascular accident (stroke) and was advised rest from 14.08.2023 to
28.08.2023, under the care of an attender. The applicant's counsel submits that
though an additional-affidavit has been filed before the Registry, the same is not
on record. He, however submits that as the applicant has been advised rest in
his home for 14 (fourteen) days, his prayer for extension of interim bail should
be allowed.
3. Ms. S Jahan, learned Additional Public Prosecutor, on the other hand
submits that as per the medical certificate dated 14.08.2023 produced by the
applicant's counsel, the applicant is fit to resume his duties. As this Court had,
vide order dated 02.08.2023, directed the applicant to surrender before the
concerned jail authorities today, i.e., 17.08.2023, the applicant should surrender
before the jail authorities.
4. We have heard the learned counsels for the parties.
5. The applicant had been convicted under Section 302 IPC vide judgment
dated 02.06.2022, passed by the learned Sessions Judge, Morigaon in Sessions
Case No. 24/2015 and was sentenced, vide order dated 08.06.2022, to undergo
rigorous imprisonment for life with a fine of Rs. 50,000/-, in default simple
imprisonment for 1 (one) year.
6. Being aggrieved, the applicant filed Criminal Appeal No. 204/2022 and an
application under Section 389(2) Cr.PC for suspension of the sentence and bail
vide I.A.(Crl.) 481/2022.
7. This Court dismissed I.A.(Crl.) 481/2022, by holding that the applicant
had given a blow on the head of the deceased with a spade, which caused the
death of the deceased. Further, this Court also came to a finding that as per the
medical report submitted by the Medical & Health Officer, District Jail, Morigaon,
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the medical ailments of the applicant was not found to be serious in nature.
8. Subsequent to the above facts, the applicant filed I.A.(Crl.) 421/2023,
praying for bail on the ground that the applicant was suffering from high blood
pressure, continuous headache on the left side, migraine and other related
problems. This Court vide order dated 02.06.2023, passed in I.A.(Crl.) 421/2023
granted interim bail for 2 (two) months to the applicant w.e.f. the date of his
release. This Court also directed the applicant to surrender before the
concerned jail authorities on expiry of 2 (two) months.
9. Thereafter, the applicant filed I.A.(Crl.) 469/2023 seeking clarification of
the order dated 02.06.2023, passed in I.A.(Crl.) 421/2023. The clarifications
sought for was with regard to the conditions required for grant of bail and which
Court would be the competent Court to accept the bail bond of the applicant.
I.A.(Crl.) 469/2023 was disposed of vide order dated 05.06.2023 by holding that
the applicant was allowed to go on interim bail for 2 (two) months on a bail
bond of Rs.20,000/- with one surety of the like amount, to the satisfaction of
the learned Sessions Judge, Morigaon in relation to the order dated 02.06.2023,
passed in I.A.(Crl.) passed in I.A.(Crl.) 421/2023. The applicant was thereafter
released on bail in terms of the orders passed in I.A.(Crl.) 421/2023 and I.A.
(Crl.) 469/2023.
10. Subsequent to the above facts, the applicant filed I.A.(Crl.) 646/2023
praying for extension of the interim bail granted to him by a further period of 4
(four) months. This Court passed order dated 02.08.2023 in I.A.(Crl.) 646/2023
allowing extension of the interim bail granted earlier upto 16.08.2023. This
Court also directed the applicant to surrender before the jail authorities on
17.08.2023, i.e., today. This Court further held that the applicant was to go to
the Gauhati Medical College & Hospital for better investigation and treatment
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and the report therein was to be submitted to this Court. This Court in its order
dated 02.08.2023 passed in I.A.(Crl.) 646/2023 evoked surprise with the fact
that two medical certificates/advice slips had been issued on the same date, by
the same Doctor. Further, the advice given on the two advice slips by the same
Doctor, against the same patient, on the same date, was different.
11. Today, the learned counsel for the applicant has stated that he has filed
an affidavit giving a report with respect to his medical examination conducted
by the Gauhati Medical College & Hospital. Though the affidavit is not in the
records, he has produced photo copies of the same. On perusing the discharge
certificate dated 14.08.2023 issued by the Gauhati Medical College & Hospital to
the applicant, it is seen that the applicant has been shown to have improved
and the diagnosis against him was that he had cerebrovascular accident
(stroke). Further, it is stated that the applicant was clinically and
hemodynamically stable at the time of discharge. The medical certificate dated
14.08.2023 issued by one Dr. Subhajit Mitra, Assistant Professor, Medicine,
Gauhati Medical College & Hospital is to the effect that the applicant was his
patient from 10.08.2023 to 14.08.2023 and he had suffered from a
cerebrovascular accident (stroke). He was advised to take rest for 2 (two) weeks
w.e.f. 14.08.2023 to 28.08.2023, under the proper care of an attender.
12. In the case of Anil Ari vs. State of West Bengal , reported in (2009)
11 SCC 363, the Supreme Court had granted bail to the appellant/accused
considering that he was 70 years of age, who had been in jail for a year. In the
case of Bakshish Ram & Anr. vs. State of Punjab, reported in (2009) 6
SCC 561, the Supreme Court had granted bail to an old lady of 80 years, who
was suffering from age related ailments and who had been in jail for a year. In
the case of Ashok Kumar Singh Chandel vs. State of U.P. in Criminal
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Appeal No. 1046-1047/2019, the Supreme Court had granted bail to the
applicant, who had suffered brain hemorrhage due to which he suffered from
amnesia and was unable to take care of himself or his medication. In the case
of M. Sivasankar vs. Union of India & Anr. in I.A. No. 135251/2023, the
Supreme Court had granted bail to the applicant for 2 (two) months, as the
applicant had been advised surgery to the spine and had directed that the
applicant would not go to any other place except the vicinity of the hospital and
his residence. In the present case, the applicant is apparently 75 years of age.
13. The above being said, the reasons given for grant of interim bail in this
case was only on medical grounds. However, the documents submitted before
us, i.e., the discharge certificate and the medical certificate, both dated
14.08.2023 show that the applicant has had a stroke and had improved. Further,
he was found to be clinically and hemodynamically stable at the time of
discharge, though he was required to have rest for 2 (two) weeks.
14. We are of the prima facie view that the applicant is medically fit to be
incarcerated in judicial custody. However, we are also of the view that a report
should be given by the Neurologist of Gauhati Medical College & Hospital
through the Superintendent, Gauhati Medical College & Hospital, with regard to
the health condition of the applicant. As the medical certificate dated
14.08.2023 requires the applicant to take rest for two weeks, the applicant
should be admitted in the Gauhati Medical College & Hospital, wherein a report
should be made with regard to the condition of the applicant by a Neurologist
and the report should be submitted through the Superintendent, Gauhati
Medical College & Hospital to the Registry of this Court, on or before
23.08.2023. The report should also state whether the applicant can be placed in
judicial custody, keeping in view the fact that he has been convicted of murder.
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It is made clear that the applicant should get himself admitted in the hospital by
19.08.2023 and consequently, the interim bail is extended upto 24.08.2023.
Accordingly, list this matter on 24.08.2023.
JUDGE JUDGE
Comparing Assistant
