Jammu & Kashmir High Court
Irfan Shafi Mir vs National Investigating Agency on 28 February, 2024
Bench: Tashi Rabstan, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl A(D) No.74/2022
CrlM No.2254/2022
CrlM No.1329/2023
c/w
Crl CP No.5/2023
Reserved on : 20.02.2024
Pronounced on : 28.02.2024
Irfan Shafi Mir, age 32 years,
S/O Late Sh. Mohd. Shafi Mir,
R/O H.No. 44, Diaroo P/S Keegam,
District Shopian, J&K.
....... Appellant(s)
Through: Mr. I.H.Bhat, Advocate
Versus
National Investigating Agency, Jammu
......Respondent(s)
Through: Mr. Vishal Sharma,DSGI for
respondent-NIA
Mrs. Monika Kohli, Sr. AAG for
respondent-contemnors in Crl
CP No. 05/2023
CORAM:
HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
TASHI-J:
1. The instant appeal filed by the appellant-accused, namely, Irfan
Shafi Mir, son of late Sh. Mohd. Shafi Mir, resident of H.No. 44, Diaroo,
P/S Keegam, District Shopian, J&K (hereinafter referred to as appellant-
accused) is directed against the order dated 06.12.2022 passed by the learned
3rd Additional Sessions Judge, (Special Court constituted under Section 22
of NIA Act), Jammu, (hereinafter referred to as 'trial Court'), whereby the
application filed by the appellant-accused for his release on short term
bail/parole in case RC No. 01/2020/NIA/JMU under Section
120B/121/121A/122 IPC and Sections 17/18/18B/19/23/38/39/40 UA(P) Act
Section 25(1) (a) and 35 of Arms Act and Sections 4 & 5 of Explosive
Substances Act on medical grounds has been dismissed.
2. The genesis for calling in question the order impugned is the alleged
medical condition of the appellant-accused which is claimed to be
deteriorating day by day while being in custody as the appellant-accused has
been advised immediate surgery for both renal culsi and anal tissues for
which the concerned Jail is not equipped with medical infrastructure. That
right to life being a fundamental right and the respondent by not providing
the required treatment is violating his said right and the rejection of the bail
by the trial Court amounts to denial of fundamental right to life to the
appellant-accused, particularly, when he is suffering from a life consuming
disease.
3. The grounds taken by the appellant-accused in the present appeal inter
alia includes his willingness to undertake not to make any inducement,
threat or promise to any person acquainted with the facts of the case directly
or indirectly, so as to dissuade him from disclosing such facts to the Court or
any law enforcing authority. That the appellant-accused is son of the soil and
has no golden wings to flee and shall participate in the trial and make
himself available on each and every hearing of the case. That there is no
likelihood of the appellant-accused to abscond or tamper with the
prosecution evidence so on so forth.
4. Mr. Vishal Sharma, learned counsel for respondent-NIA has filed
objections contending therein that the trial Court has rightly rejected the bail
application of the appellant-accused by passing a detailed and reasoned
order and the jail authorities have been extending all the medical facilities
and treatment to the appellant-accused as advised by the Doctors in the
Government Hospital that too under the supervision of the jail authorities.
That the trial Court has already framed charges against the appellant-accused
for the commission of offences punishable under Sections
120B/121/121A/122 IPC and Sections 17/18/18B/19/23/38/39/40 UA(P) Act,
1967 Section 25(1) (a) and 35 of Arms Act and Sections 4/5 of Explosive
Substances Act and in case the appellant-accused is released on bail, there is
every likelihood of his influencing and threatening the witnesses and
destroying valuable evidence besides fleeing to Pakistan to avoid the trial.
Thus, learned counsel for the respondent-NIA prays for dismissal of the
appeal being meritless.
5. Heard learned counsel for the parties and perused the record.
6. During the pendency of the present appeal, this Court vide order dated
15.03.2023 directed the Superintendent District Jail, Kishtwar to
immediately shift the appellant-accused to Central Jail, Kot Bhalwal, Jammu
so that all the medical facilities are immediately provided to the appellant-
accused at Govt. Medical College and Associated Hospitals, Jammu.
However, learned counsel for the appellant-accused on 26.07.2023 drew the
attention of this Court to the fact that the appellant-accused has been shifted
to Central Jail, Agra, Utter Pradesh instead of shifting him to Central Jail,
Kot Bhalwal, Jammu which is in clear disregard to the Court order. In this
regard, learned DSGI was directed to file status report indicating therein
whether the required medical facilities were being provided to the appellant-
accused or not. The status report has been filed by Mr. Sharma, learned
DSGI perusal whereof shows that the appellant-accused was examined on
11.04.2023, 28.06.2023, 25.07.2023 and 06.11.2023 by different Doctors
who have prescribed medicines for high blood pressure and other dental
related problems. It has been further clarified that because of the treatment
given to the appellant-accused, all his parameters are under control.
7. In addition, Mrs. Monika Kohli, learned Senior AAG, who is
representing, respondents-contemnors in Crl CP No.05/2023 was also
directed to file affidavit regarding the reasons for shifting the appellant-
accused to Central Jail, Agra, UP to which she filed statement of facts on
09.01.2024 stating therein that the appellant-accused was found involved in
aiding and abetting terrorism and secessionism in varying degrees from
within the jail premises, thus, his shifting was recommended by the
Intelligence Agencies to a Jail outside the UT of J&K. So considering the
interest of national security, the appellant-accused was shifted to Central Jail,
Agra, UP from Central Jail, Kot Bhalwal, Jammu. It has been specifically
pleaded in the statement of facts that order of this Court dated 15.03.2023
was duly complied and the appellant-accused was shifted on 05.04.2023
from District Jail, Kishtwar to Central Jail, Kot Bhalwal, Jammu to ensure
treatment at GMC, Jammu and subsequently on 07.04.2023, the appellant-
accused was shifted to Central Jail, Agra, UP, in view of recommendation of
the Intelligence Agencies, and Agra being a big city certainly has better
medical facilities. Thus, there is no willful disobedience of order dated
15.03.2023 passed by this Court.
8. Mrs. Kohli, learned Sr. AAG has further submitted that none of the
Medical Officer, who has examined the appellant-accused has advised his
hospitalization for required intensive care. Moreover, none of the family
member of the appellant-accused has projected any grievance with regard to
the treatment given to the appellant-accused. In support of her argument,
Mrs. Kohli, learned Sr. AAG has referred to an order dated 01.07.2020
passed by Hon'ble Supreme Court of India in SLP(Crl) No.5747-5748/2019
titled Mahender Singh Yadav Vs. High Court of Delhi and others
wherein the application filed by the petitioner therein had been rejected by
the Hon'ble Supreme Court of India. Paragraph No.3 of the order dated
01.07.2020 reads as under:-
"The petitioner or his family members have no
grievance with regard to the treatment given to the petitioner.
Mr. R. Basant, learned senior counsel for the petitioner
argued that interim bail should be granted to the petitioner
to enable him and/or his family to take steps in view of the
deteriorating health condition of the petitioner. There is,
however, no specific indication and/or suggestion
forthcoming from the petitioner and/or his family members
as to the steps which they wish to take. There is no offer from
the family to shift the petitioner to any other hospital. There
is not even a whisper in the petition that any differential
treatment is meted to the patient or to his relatives on the
ground of incarceration of the petitioner."
9. On the other hand, learned counsel for the appellant-accused has also
placed reliance on following judgments:-
1. Satyendar Kumar Jain Vs. Directorate of Enforcement
passed in SLP (Crl) No. 6561/2023;
2. P.Varavara Rao Vs. National Investigation Agency passed
in Criminal Appeal No.1206 of 2022 (Arising out of SLP(Crl.)
No.5913/2022 with Criminal Appeal No.1287 of 2022 (Arising out
of SLP(Crl.) No.5931 of 2022)
3. Satender Kumar Antil Vs. Central Bureau of Investigation
and others reported in 2022 AIR(SC) 3386
4. Re-Inhuman Conditions in 1382 Prisons reported in 2017
Legal Eage (SC) 843. programme
10. We have gone through the judgments referred to by learned counsel
for the appellant-accused. In our opinion, the orders passed in the above
referred judgments have no bearing to the facts of the present case.
11. Learned counsel for the appellant-accused has also referred to an
order dated 15.05.2023 passed by the co-ordinate Bench of this Court in case
titled Laddi Ram Vs. UT of J&K submitting that the said Bench has
exercised the discretion in favour of the petitioner-accused on medical
grounds. Although, the order passed by the co-ordinate Bench is not binding
upon this Court, yet we have examined the same and found that the medical
condition of the petitioner-accused in the said case, as projected before the
Court in paragraph No.5 of the order, was such which enabled the said
Bench to exercise the discretion in his favour whereas no such
emergency/urgency is shown in the case at hand. Besides this, in that case
there were no inputs from the Intelligence Agencies about the activities of
the petitioner-accused that were prejudicial to the national security.
12. Be that as it may, the main contention to challenge the order of the
trial Court dated 06.12.2022 is that right to life of the appellant-accused is
getting violated as he requires specialized medical treatment. The appellant-
accused has no where pleaded in his appeal that the medical ailments with
which he is suffering cannot be taken care of while he is in custody in
Central Jail, Agra, U.P. The only concern raised by the appellant-accused
was that the medical facilities required for his treatment were not available
in District Jail, Kishtwar. We are afraid that no such contention has been
raised with regard to Central Jail, Agra (UP). Rather status of the medical
facilities being extended to the appellant-accused at Agra, U.P. that is placed
on record by Mr. Vishal Sharma, learned DSGI shows that the appellant-
accused was examined on 11.04.2023, 28.06.2023, 25.07.2023 and
06.11.2023 by different Doctors who have prescribed medicines for high
blood pressure and other dental related problems. It has been further
clarified that because of the treatment given to the appellant-accused, all his
parameters are under control. Therefore, the contention of learned counsel
for the appellant-accused that the appellant-accused is suffering from life
consuming disease is not substantiated from the medical record rather the
same get belied from the status report filed by Mr. Vishal Sharma, learned
DSGI.
13. As of now, in our opinion, learned counsel for the appellant-accused
has failed to convince this Court that there is any change in circumstances
regarding medical conditions of the appellant-accused especially after the
passing of the order dated 06.12.2022 by the trial Court, for exercising
discretion for grant of short term bail/parole in favour of the appellant-
accused. Therefore, this Court is not inclined to allow this appeal.
14. The net result is that the Appeal fails so the same is dismissed along
with application(s) being bereft of merit.
15. However, before parting, this Court deems it appropriate to give
liberty to the appellant-accused to approach the trial Court in case of any
change in circumstances of the treatment being provided to him at Agra and
in that case trial Court shall pass appropriate orders for providing medical
facilities to the accused as and when needed in a hospital of repute.
Crl CP No.05/2023:
In view of the order passed in the main appeal, the contempt
proceedings are dropped. Rule, if any, issued is hereby discharged.
(Puneet Gupta) (Tashi Rabstan)
Judge Judge
Jammu
28.02.2024
"Madan Verma-Secy"
Whether approved for reporting? Yes/No.
