The court established that short term bail can be granted on medical grounds, emphasizing the right to health under Article 21, despite the severity of the charges.

ORDER :

Per Chowdhary, J.

1. Through the medium of this Appeal, the appellant seeks setting aside of the order dated 12.09.2024 (impugned order) passed by the court of learned Special Judge (Designated NIA court for Shopian- Kulgam) at Kulgam (hereinafter referred to as ‘Trial court’), whereby the application moved by the appellant, as accused, for grant of short bail on medical ground, in a case titled ‘UT of J&K Vs. Aqib Hussain Nanda & Ors.’, arising out of FIR No.83/2022 registered at Police Station Keller, for the commission of offences punishable under Sections 302, 34 IPC, 18, 19, 38, 39 UA(P) Act, 7/27 Indian Arms Act, s, was rejected.

2. The appellant-accused, as pleaded, was arrested on 17.01.2023 in the aforesaid case and during his long incarceration he developed some ailments and, as such, had moved an application for grant of bail on medical grounds before the trial court, who vide impugned order rejected the bail application observing therein that there is no provision in the Criminal Procedure Code with respect to short term bail; that the appellant-accused stands arrested in the case on account of receiving money from one of the co-accused, as alleged by the respondent, however, the appellant- accused without touching the merits of the case approached the trial court only on account of medical emergency, as he was suffering from ‘Orchidectany/Orchidopexy’, having severe body pain and the doctors had advised treatment by surgical intervention; that the appellant-accused had undergone surgery which, however, resulted into failure and the appellant-accused again faced severe pain in the abdomen and other body parts and after consultation with the doctors, it was advised by the surgeons for fresh surgery; that in view of the earlier surgery conducted on the appellant-accused and no proper care being taken in the jail, another surgery had to be conducted on him on 10.11.2024; that he requires post surgery care being managed by his family members; that as per the advice of the doctors, third surgery was also proposed to be conducted on the appellant-accused.

3. It has been further pleaded that the protection of life is of paramount consideration in view of Article -21 of the Constitution of India and a liberal approach is required to be taken with respect to short term bail on account of medical emergency; finally it was prayed that the impugned order be set aside and the appellant-accused be admitted to short term bail for a period of four months so that his post surgery is taken care of and managed properly by his family members.

4. The appellant-accused has placed on file his medical record i.e., Inpatient case sheet of Government SMHS Hospital Srinagar, which reveals that the appellant-accused was admitted in the said hospital on 27.06.2024 as a case of left UDYC(L) testis and that he was operated for ‘Orchidectany/Orchidopexy’ disease. The appellant- accused on developing some problem in surgery was again admitted on 01.10.2024 in the same hospital and was discharged on 05.10.2024 after being managed conservatively.

5. The appellant had also placed on record a copy of certificate issued on 13.11.2024 by a group of doctors of the Department of Surgery, Government Medical College, Srinagar, headed by HoD, stating that the appellant-accused was initially operated on 29.06.2024, however, he was again admitted in the said hospital on 01.10.2024 complaining of ‘Mesh infection’, which was managed conservatively and he was discharged on 05.10.2024; that he was again admitted on 06.11.2024 for ‘Mesh infection’ and was operated on 09.11.2024 and the descending loop colostomy was done and after a detailed discussion with Dr.Attri, HoD of SUIII, the appellant-accused has to go for another surgery after 6 to 8 weeks as reversal of descending loop colostomy, if post operative period remains uneventful.

6. During the pendency of the Appeal, the counsel for the respondent was directed to verify with regard to the ailment of the app