Mohd. Iqbal vs State

Mr. Mohammad Yaqoob Mir, J. - Present motion has been laid by the petitioner seeking concession of bail mainly on two grounds:-

(i) Delay in trial and now in disposal of the appeal;

(ii) Health condition of the accused.

On similar grounds earlier an application bearing Cr. MP No. 165/2013 was filed; same was dismissed vide detailed order dated 14.10.2014.

Learned counsel had referred to the judgments in support of his contention, which have been taken note of in the said order. Today same

judgments are again relied upon.

While deciding the earlier application vide order dated 14.10.2014, the position of the case including heinousness of the offence, the manner and

mode of the commission of offence was kept in the view and thereafter the well considered order was passed.

According to learned counsel there is now change in circumstances i.e. (a) in the order dated 14.10.2014 it was observed that the appeal

should be taken up for final hearing on priority basis, which has not happened; (b) the view was taken that proper treatment should be provided to

the accused but in effect same has not been provided to the accused.

Coming to the ground (a) that the appeal has not been disposed of till date when more than one year has elapsed from the date of rejection of

the earlier application; it is true that it was observed that the appeal be taken up on priority basis but who is responsible for the delay is clearly

reflected in the orders recorded on the appeal file from 14.10.2014 onwards.

After the order of rejection of the earlier application for grant of bail, the appeal had come up for consideration on 13.11.2014 but due to

paucity of time was adjourned. Then it had again been listed on 26.11.2014 but arguing counsel for the appellant was not available, so was

adjourned. Then it had been taken up on 12.12.2014; again counsel for the appellant was not present. Then again it has been taken up on

07.08.2015; counsel for the appellant again was not present. Then again on 24.09.2015 matter had been adjourned at the request, as was made

on behalf of the counsel for the appellant.

It is clear that the delay in disposal of the appeal is totally attributable to the appellant, therefore, on such count, applicant cannot claim

concession of bail.

Coming to the ground (b) i.e. the health condition of the accused(appellant), according to learned counsel for the appellant one kidney of the

appellant had already been re moved which position was taken note of in the order dated 14.10.2014 but now the second kidney of the appellant

is getting damaged and his health condition deteriorates. In connection with this submission, which was made earlier also, the report was directed

to be called from the Superintendent District Jail, Udhampur.

Today the photo-copy of the report submitted by the Medical Officer, District Jail Udhampur to the Superintendent District Jail, Udhampur has

been produced; perusal of which suggest that the appellant had undergone Nephrectomy of right side on 21.10.2011. In addition he is suffering

from Benigh Hyperplasia of Prostrate (BHP). The patient is also having recurrent symptoms related to urinary symptoms and needs specialised

medical care available at higher centers like Super Specialty Hospital Jammu.

Appellant is said to be suffering from some ailment; Superintendent District Jail Udhampur is legally bound to provide all, medical facilities. As

per the report of Medical Officer, appellant requires medical care available at higher centers like Super Specialty Hospital Jammu. The

Superintendent District Jail Udhampur shall take immediate steps whatever required at his level for ensuring every kind of medical facility to the

appellant. In the process, if need arises, appellant shall be shifted to the Central Jail Jammu. Report in this regard shall be submitted by or before

the next date of hearing. In case of any default matter will be viewed seriously.

In the aforesaid background no change in circumstances from the date of dismissal of earlier bail application is forthcoming which would

warrant grant of bail in conflict with the observations and the opinion formed while disposing of earlier application dated 14.10.2014. Application,

as such, disposed of.

Copy of the order be sent to the Superintendent, District Jail, Udhampur for ensuring compliance.

Criminal Appeal No. 79/2013 along-with Confirmation No. 27/2013 shall be listed immediately after ensuing vacation for hearing in the 1st

week of February 2016 in the regular cause list as case no. 1.