Ab. Hamid Bhat vs State of J&K

Mohammad Yaqoob Mir, J.—In connection with notorious BOPEE scam case has been registered as FIR No. 24/2013 P/S Crime Branch

for commission of offences punishable under Sections 5(1)(d) r/w 5(2) of Prevention of Corruption Act, Sections 420, 406, 201 and 120-B RPC.

Petitioner is alleged to have abetted the commission of offence so is included in the list of accused under Section 109 RPC. The allegation against

the petitioner is that he got his daughter Mehak Hameed selected for pursuing MBBS course by fraudulent means. Co-accused Suhail Ahmad

Wani has favoured him by supplying question papers of CET 2012 in advance. In CET 2011, rank of petitioner's daughter was 8243 while as in

CET 2012 by fraudulent means she has managed to secure 22nd rank.

Allegedly in the scam, lot of money has changed hands but in the case of petitioner, allegedly it was divulged by co-accused Suhail Ahmad Wani

to one Javed Ahmad Dar that the accused Abdul Hamid Bhat (petitioner herein) is suffering from cancer so his daughter has to be accommodated

on compassionate basis, means without any payment, so was helped, as a result whereof, daughter of the petitioner could secure her position in the

merit list so as to pursue MBBS course.

Challan (charge sheet) is stated to have been filed before the trial court where petitioner has surrendered, so was taken into custody on 6th

August, 2014.

Learned Amicus despite repeated opportunities has not filed objections whereas learned AAG, appearing for respondents, has filed detailed

objections.

Learned counsel appearing for the petitioner projected the case of the petitioner for release on bail mainly on health grounds. While doing so,

highlighted that the petitioner is suffering from life taking disease, he has received 8 cycles of Chemotherapy. His condition is to further deteriorate

due to continuous incarceration. His submission is supported by the medical report submitted by Senior Medical Officer, Central Jail, Srinagar to

the Superintendent, Central Jail, Srinagar, on 9th August, 2014. Same is reproduced here-under:

OFFICE OF THE SR. MEDICAL OFFICER CENTRAL JAIL SRINAGAR

To

The Superintendent

Central Jail, Srinagar.

Sub:- Medical report of Jail inmate/detenue Abdul Hamid Bhat S/O Gh. Ahmad Bhat R/O Sopore, Baramulla.

Sir,

Medical report of above said jail inmate as depicted from previous records and present medical elements as reported by the Sr. Medical Officer of

Central Jail Srinagar is as under:--

This is to certify that above mentioned jail inmate has been operated upon for Cr. Colon in December, 2011, as per the records available from the

SKIMS Soura Sgr (photo all the Hospital records are attached with). After surgery he has received Eight cy. Of Chemotherapy. Patient continues

to be under follow up.

This is for your information and necessary action at your end.

9/8/14

Sr. Medical Officer

Central Jail

The position is further supported by one more certificate dated 20th August, 2014 issued by Senior Resident Doctor SKIMS Ward. Same is

re-produced hereunder:

TO WHOM IT MAY CONCERN

This is to certify that this patient, namely, Bhat Ab. Hameed who is a known case of Cn. Colon operated in Chemotherapy Protocol and is

presently admitted under MRD No. 816812 under deptt. Of Medical Oncology in ward on Bed No. 17 as case of Active Gastroenteritis,

Jaundice patient continues to have symptoms as on 20/08/2014, and such to continue treatment in hospital until he becomes any styptic and is

discharged from hospital.

Dt. 20/08/2014

Dr. Feroze Ahmad Mir

Senior Resident Doctor

SKIMS Ward

Various other prescriptions have also been placed on record so as to show as to what is the health condition of the petitioner.

Learned AAG would submit that all medical facilities will be made available to the petitioner in the jail itself. He is involved in a various serious

offence, which has far reaching consequences and adverse impact on the psyche of the aspiring competing candidates. Most of the applications

have been rejected in view of seriousness of the offence committed.

It is a fact that the offence in which the accused are allegedly involved has the effect of shocking conscience of the society and adverse impact

on the psyche of the aspiring candidates and has the effect of negating the very object of transparent selection. Conduct of CET exams by BOPEE

has a laudable object of ensuring complete confidentiality and transparency so as to ensure that only and only meritorious candidates from amongst

the meritorious get place in final select list for pursuing various courses in various disciplines merit-wise. The seriousness of the offence is such,

which does not warrant exercise of discretion in favour of such type of offenders.

Every case has its own facts and features. Position of the petitioner is exceptional. He is suffering from a disease which in itself has an

unbearable impact on the life and psyche of the petitioner when, admittedly, he has received 8 cycles of Chemotherapy and requires continuous

follow up which can be done even by keeping him in custody but keeping in view the type of the disease and the treatment, the petitioner in

addition to medical facilities requires something more to be taken care of which, in such cases, can be possible in a home atmosphere where the

requirement of the family around is advantageous and unavoidable.

The criminal trial in case of success will provide for conviction and sentence but in case accused looses life, there can be no conviction or

sentence against such accused. Even in heinous offences, sickness is a valid ground for grant of bail. The sickness of the type which petitioner is

encountering warrants exercise of discretion favourably, same shall be in-keeping with the right guaranteed under Article 21 of the Constitution of

India. While allowing this application, we make it clear that for the reasons stated above it is an exceptional case, which persuaded us to exercise

discretion in favour of the petitioner. It shall not be open for the co-accused to claim parity otherwise. Petitioner Abdul Hamid Bhat is directed to

be released provided he furnishes surety bond to the tune of Rs. 20,000 (rupees twenty thousand) to the satisfaction of Registrar Judicial and the

personal bond of like amount to the satisfaction of Superintendent Central Jail, Srinagar, with following conditions:

i) Petitioner shall not leave the limits of Kashmir province without prior permission of the trial court;

ii) Shall not, in any manner, directly or indirectly, impede the smooth trial of the case;

iii) Shall ensure his presence before the trial court on the dates as shall be scheduled except for just cause.

Application disposed of as above.