Mohammad Yusuf Ganie vs Ut Of J&K
2023 Latest Caselaw 73 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR

                                           Reserved on: 04.02.2023
                                           Pronounced on:08.02.2023


                      Bail App No.09/2022
                       CrlM No.36/2023


MOHAMMAD YUSUF GANIE                          ... PETITIONER(S)
                Through: -   Mr.Owais Shafi, Advocate.

Vs.

UT OF J&K                                  ...RESPONDENT(S)
                Through: -   Mr. Faheem Nisar Shah, GA.

CORAM: HON'BLE MR. JUSTICE RAJESHSEKHRI, JUDGE

                         JUDGMENT

1) Through the medium of present application, the

applicant, Mohammad Yousuf Ganie, through his brother,

Abdul Lateef Ganie, seeks his liberation on bail in FIR

No.66/2022 of Police Station, Beerwa Budgam, on medical

grounds.

2) Case of the applicant is that he has been implicated

in a false and frivolous case for the alleged commission of

offences under Sections 376, 450 and 506 of the Indian

Penal Code, 1860, and he is presently lodged in Central

Jail, Srinagar. According to the applicant, the prosecution

witnesses so far examined during the trial have not

deposed anything incriminating against him. The Page |2

applicant seeks his enlargement on bail on the ground

that he is suffering from various aliments including

Psoriasis Vulgaris, Grade-III Fatty Liver (severe) and

Gastroenterological disorder, for which he has been

suggested hospital admission and close follow up.

According to the applicant, during his judicial custody, he

has developed other life consuming diseases.

3) It is also case of the applicant that after examining

the medical report furnished by the Senior Medical Officer,

Central Jail, Srinagar, and taking into account the gravity

of his ailment, he was admitted to interim bail by the

learned Trial Court of Additional District & Sessions Judge

(FT), Budgam, vide order dated 05.11.2022, which came to

be extended on 14.11.2022.However, the said interim

medical bail was cancelled by the learned Trial Court on

26.12.2022 and the applicant was directed to surrender. It

has been urged by the applicant that since he has been

implicated in a false and frivolous case and so far there is

no prosecution evidence against him, therefore, he is

entitled to be released on bail as bail is the rule and jail is

an exception.

4) Controverting the stand taken by the applicant, the

respondent is affront with the contention that as per the

report of the Senior Medical Officer, Central Jail, Srinagar, Page |3

the applicant is suffering from acute skin infestation

(Psoriasis Vulgaris). However, on the directions of this

Court as well as on medical advice, the applicant/prisoner

has been managed and treated at various hospitals viz.

Police Hospital, Srinagar, Government JLNM Hospital,

Srinagar, and Government SMHS, Hospital, Srinagar. It is

further contention of the respondent that the applicant is

being frequently referred to the hospitals outside jail for

specialized treatment and the recommended medical diet,

prescribed medicines and other facilities admissible under

rules are being provided to him.

5) Having heard rival contentions of the learned

counsels and having appreciated the law governing the

field, I have given my thoughtful consideration to the facts

and circumstances attending the present case.

6) The applicant seeks his enlargement on bail on the

predominant premise that since he is suffering from

various ailments viz. Psoriasis Vulgaris, Grade-III Fatty

Liver (severe) and Gastroenterological disorder, therefore,

he needs close follow up and is entitled to be released on

bail.

7) A perusal of the health status report of the applicant

issued by Senior Medical Officer, Central Jail, Srinagar, Page |4

addressed to the Senior Superintendent, Central Jail,

Srinagar, reveals that on 08.07.2022, the applicant was

referred to Police Hospital, Srinagar for Dermatological

consultation. However, since the said facility was not

available in the said hospital, the inmate/applicant was

examined by a Consultant Physician and was advised

medication, which was provided to him. Subsequently, on

the directions of the learned Additional Sessions Judge

(Fast Track), Budgam, the applicant was referred to

Government JLNM Hospital, Rainawari, Srinagar, for

Dermatological consultation on 29.07.2022 and his

examination revealed that the applicant was suffering

from "Psoriasis Vulgaris" for the last one year. He was

advised medication which was provided to him. On

05.08.2022, the applicant was again referred to

Government JLNM Hospital, Srinagar, for Dermatological

follow up. He was examined by Consultant Dermatologist,

who, after examination, advised medication for two weeks

and USG abdomen, which revealed Grade III fatty liver. He

was advised Gastroenterological consultation and on the

same day, he was examined by Consultant

Gastroenterologist, who advised medication, which was

provided to him. Again, the applicant was referred to

Government SMHS Hospital, Srinagar, on 19.09.2022, for Page |5

Dermatological consultation, who, after examination,

advised medication, which was provided to him.

8) It is evident from the report of the Senior Medical

Officer, Central Jail, Srinagar, that the applicant is under

regular check-up and medical examination and has been

referred to various hospitals outside jail premises on

various occasions. The medications prescribed by the

doctors are being provided to him. Therefore, there is

nothing on record to suggest immediate release of the

applicant on bail. Sight cannot be lost of the fact that the

applicant is involved in a serious offence of rape under

Section 376 of IPC and he was arrested in 2022 only.

9) In a similar fact situation, Hon'ble Supreme Court in

Asha Ram vs. Stat of Rajasthan reported in 2017 (1)

RCR Criminal 1016 SC, refused the concession of bail to

the accused, who had difficulty in urination and was

suffering with multiple ailments and as per the report of

the Medical Board of AIIMS needed specialties including

Neurology, Urology, Endocrinology, Cardiology,

Rheumatology, Geriatric Medicine etc. for his treatment.

Relevant extract of the judgment, for the facility of

reference, reads as below:

"The issue that boils down in respect of the medical condition of the petitioner is that he has difficulty in urination, emerging out of a condition described as Page |6

prostatomegaly. We are of the view that the present condition is not such a serious condition, as would entail the transfer of the petitioner from one jail to another or to require him to be subjected to any kind of specialized treatment at some different station. The medical condition of the petitioner has been described as stable and as such there is no question of extending him the concession of bail on medical grounds."

10) The offence committed by the accused, in the instant

case, is highly deleterious having societal ramifications.

There is cogent evidence available on record regarding

prima facie culpability of the accused and trial of the case

is still at the crucial stage of infancy and release of the

petitioner at this stage may be prejudicial to the

prosecution.

11) Having regard to what has been discussed above, the

present application being devoid of merit is dismissed

along with connected CrlM.

(RAJESH SEKHRI) JUDGE Srinagar, 08.02.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:           Yes/No
                   Whether the order is reportable:         Yes/No