JUDGMENT : Mohammad Yaqoob Mir, J. 1. The respondent was taken into custody for investigation purposes in connection with Case No. 5 (2) 2018 P.S. Mawkyrwat for commission of offence punishable under Section 302 IPC. On completion of investigation charge sheet (challan) has been presented. Learned Additional District Magistrate (J) at Mawkyrwat vide order dated 28.05.2018 while noticing submission of counsel for the accused to the effect that the accused is mentally unstable needs proper care and medication, and also while noticing that investigation has been completed, has ordered his release on bail, as such was released. 2. The petitioner (State) aggrieved thereof filed the instant petition under Section 439 (2) Cr.P.C. 1973 for cancellation of bail on various grounds as projected in the petition. 3. Taking note of the grounds as projected coupled with heinousness of offence and the order of Additional District Magistrate (J) as an interim measure a direction was issued for taking the accused into custody and to be lodged in Shillong District Jail with a further direction to produce him before the trial court on the scheduled date. The respondent has filed objections. 4. It is admitted that the respondent after taken into custody in pursuance to order of this Court dated 29.06.2018 has been immediately admitted in Civil Hospital, Shillong and continues to be there for treatment. From time to time Doctor has issued certificates opining therein that the respondent is suffering from mental disorder so unfit to face trial. 5. It is trite that when a person is involved for commission of murder or any other offence carrying capital punishment he is not to be released on bail under Section 437 Cr.P.C., 1973 However, proviso to Section 437 Cr.P.C. 1973 carve out three exceptions; (i) if a person is under the age of 16 years (ii) is a woman and (iii) is sick or infirm. It appears that learned trial court bracketing the accused in the exception clause i.e. "sick" coupled with the fact that investigation is complete has ordered his release. 6. While going through the contents of the order what was the degree of mental unstability of the respondent so as to treat him sick is not clear. The word "sick" is wide which takes into its sweep all types of ailments. 6. While going through the contents of the order what was the degree of mental unstability of the respondent so as to treat him sick is not clear. The word "sick" is wide which takes into its sweep all types of ailments. Before exercising discretion for grant of bail under exception clause "sick" Court is required to be cautious and careful, it has to ascertain on basis of medical evidence as to whether sickness is such which endangers life or requires extra care by the family. It has to be ascertained as to whether detention of such person in custody shall serve any purpose, it is also to be ensured that by taking such person into custody, his life may not be at peril. 7. At the first instance while going through the order of learned trial court, noticing seriousness of offence and manner it was committed, by a person belonging to disciplinary force, respondent was directed to be taken into custody. 8. Now in the light of medical prescription as produced detention of the respondent will not be appropriate. Learned Advocate General was fair enough to state that to his information the respondent right from the re-arrest pursuance to order of this Court is admitted in Civil Hospital Shillong and is being given proper treatment but his health is not improving. His submission is that in such a scenario some arrangement if made by the Court may be controlled by certain conditions otherwise respondent's being at large may have adverse impact on the moral of jawan of a disciplined force. He would submit that similar situation arose for consideration before Bombay High Court where arrangement was made so as to give a chance to the accused to improve his health. He has also produced photo copy of the judgment in the case of The State of Maharashtra v. Kapildevsingh Guptarsingh reported in (1995) 2 Bom CR 361. 9. Learned counsel for the respondent states that the accused has mental disorder any further detention may prove detrimental to his health and in case his mental disorder get aggravated there will be no trial, when there will be no trial case will suffer. 10. 9. Learned counsel for the respondent states that the accused has mental disorder any further detention may prove detrimental to his health and in case his mental disorder get aggravated there will be no trial, when there will be no trial case will suffer. 10. Allegedly, the accused has committed very heinous offence and for commission of such offence law provide stringent punishment, but punishment is possible only when there is trial and trial is possible only when the accused is alive and fit to face trial. 11. When the accused admittedly is suffering from mental disorder and under treatment, would it not be appropriate to invoke exceptional clause "sick" as incorporated in proviso to sub-section (1) of Section 437 Cr.P.C., 1973 the answer has to be in the affirmative. Degree of "sickness" of the respondent is such which warrant special consideration. 12. Medical prescription and medical status report as annexed to rejoinder affidavit filed by petitioner (State) is suggestive of the fact that the respondent has been diagnosed a case of depression/psychiatric illness. On 18th July, 2018 on review of his health condition it has been opined as under "Presently, based on the above findings, patient is still unfit to stand trial". There are other medical prescriptions on record which also suggest that as on date the respondent has aggravated mental disorder. 13. Photo copy of latest medical status report signed by Senior Specialist, MD (Psy), Civil Hospital Shillong, Meghalaya as produced by learned Advocate General today suggest that as per opinion of Doctor "Presently, Patient is not co-operative, non-responsive, not eating food on his own and still unable to stand trial". It would also suggest as is inferable that in addition to medical care respondent also requires some personal touch i.e. homely atmosphere. Medical status report as produced by learned Advocate General be taken on record. 14. At this stage question for determination is to whether the respondent shall be released on bail or not? The answer has to be yes. 15. Whether the respondent shall be in a position to stand trial is not the issue to be decided in this application because there is a set procedure to be followed by trial court where the case is pending. Chapter XXV Cr. P.C. contains provision pertaining to accused persons of unsound mind. The answer has to be yes. 15. Whether the respondent shall be in a position to stand trial is not the issue to be decided in this application because there is a set procedure to be followed by trial court where the case is pending. Chapter XXV Cr. P.C. contains provision pertaining to accused persons of unsound mind. Section 329 Cr.P.C. 1973 provides how a person of unsound mind is to be dealt with at the trial. When such accused is produced before trial court or otherwise when he appear before trial court, trial court has to follow the prescribed procedure under the Chapter XXV Cr.P.C. 16. While taking into consideration the entire gamut of the case more particularly "sickness" of the respondent, he is required to be released on bail so that he can be taken proper care of by his family members. Though proper medical care and all medical facilities have been made available to him from the day he has been taken into custody but till date there is no improvement, suggesting that for improving his mental condition homely atmosphere may be required. Therefore, the accused (respondent) be released on furnishing fresh surety bond of Rs. 50,000/- to the satisfaction of Joint Registrar (J). He shall be handed over to his brother Shri Sunny Deshwal who is stated to be looking after the welfare of the respondent so shall take proper care and will also ensure his presence before trial on date as shall be scheduled if not already scheduled. Trial court shall follow the procedure as prescribed under Chapter XXV Cr.P.C. dependent thereon and the health condition of the respondent, it shall be open to the petitioner (State) to seek cancellation of bail if at any point of time circumstances so warrant. Such request if made shall be considered by trial court on its own merit. Copy of this order be sent to trial court for information. 17. Disposed of as above.