Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 472 (JK)

Ab. Hamid Bhat v. State Of J&K

2014-11-27

Hasnain Massodi, MOHAMMAD YAQOOB MIR

body2014
Per Yaqoob, J. 1. 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. 2. 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. 3. 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. 4. 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. 5. Learned Amicus despite repeated opportunities has not filed objections whereas learned AAG, appearing for respondents, has filed detailed objections. 6. 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. 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" 7. The position is further supported by one more certificate dated 20th August, 2014 issued by Senior Resident Doctor SKIMS Ward. Same is re-produced here-under: "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. Dr. Feroze Ahmad Mir Dt.20/08/2014 Senior Resident Doctor SKIMS Ward" 8. Various other prescriptions have also been placed on record so as to show as to what is the health condition of the petitioner. 9. 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. 10. 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. 10. 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. 11. 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. 12. 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. 13. 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. 13. 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.