JUDGMENT : 1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11822019221371 of 2022 registered with the Navsari Town Police Station, Navsari of the offence punishable under Sections 302, 120B and 34 of the IPC as well as Section 135 of the Gujarat Police Act. THE FACTUAL PRISM: 2. On 15.09.2022, a First Information Report (for short ‘FIR’) was lodged by the brother of the deceased, namely, Imran Liyaqatali Saiyed, i.e, the original complainant against the present applicant-accused and three other unknown persons for the gruesome murder of his brother. The complaint states that on 15.09.2022, when the complainant was at his home, at that time, his relative, namely, Farhana Sakirali came to his house and informed the complainant that someone has assaulted his brother Sahidbhai at the hall premises and he was taken to the Parsi Hospital for treatment. Therefore, the complainant immediately rushed to the Parsi Hospital and when reached there, he found that his brother was in an unconscious condition and underwent the treatment. The complainant noticed multiple serious injuries on the different parts of the body of his brother to be caused by some sharp edged weapon like knife. The complainant, therefore, inquired from the two persons present over there, namely, Prakashbhai and Ravibhai, who were the staffers of the hall about such happening, whereupon, they informed the complainant that on the fateful day, when they were working inside the hall, at that time, at around 9:15 in the morning, as soon as Sahidbhai entered into the hall, immediately two unknown persons entered in the hall and made an assault upon the deceased Sahidbhai, among whom, one person caught hold the deceased and other had started giving knife blows indiscriminately to the deceased, due to which, Sahidbhai started screaming and upon hearing such shouting, they both rushed to the gate of the hall and tried to catch those unknown persons, however, both that persons ran outside the hall and fled away on one white coloured Activa carried by one another person standing outside the hall. Thereafter, both the said staffers took the deceased to the hospital where he was declared dead by the doctor. 3. Thereafter, both the said staffers took the deceased to the hospital where he was declared dead by the doctor. 3. The complaint further states that the entire incident has happened because of the internal property dispute between the five brothers amongst which the applicant-accused is one of the brothers. The deceased had been managing the affair of the said property since last fifteen years. There were total five owners of the property named Dargahwala Hall viz. (i) Muslimuddin Salauddin Sadruddin Darwahwala, staying at America (ii) Salauddin sadruddin Darwahwala, staying at America (iii) Tajoddin Sadruddin Dargahwala, staying at America (iv) Jafarsha Sadruddin Dargahwala, (v) Asif Yusufali Dargahwala, staying at America. One day, when a survey of the property was being done, an altercation took place between Muslimuddin Darwahwala and Jafarsha Dargahwala, i.e, the applicant herein regarding partition of the property and at that time, the deceased Sahidbhai was also present there. During such altercation, the applicant-Jafarsha Dargahwala slapped the deceased and threatened him of dire consequences as he was favouring the rival party. Some threatening messages were also sent by the applicant-Jafarsha to the deceased as well as the rival partners for which an application was also given by the deceased Sahidbhai at the Navsari Town Police Station, pursuant to which, a compromise was taken place between the rival parties. Thereafter, somewhere in the month of October, 2021, partition took place between the five brothers in respect of the disputed property of 50,000/- square feet whereby the property was divided into two parts, i.e, 60% share gone to the first party and 40% came under the second party. The first party got the marriage hall in their share and the deceased Sahidbhai had been looking after the affairs of the said hall. The applicant-Jafarsha Dargahwala then left the country and went to America. However, just one month ago from the date of the incident, applicant-Jafarsha came back to India and sold out the 40% share of his land. 4. It is further stated in the complaint that about 15 days ago from the date of the incident, the deceased told the complainant that two suspected unknown persons came at the Dargahwala Hall on one unnumbered two wheeler moped and asked him about the way towards Big Dargah and left. Therefore, the complainant told the deceased to be more careful and informed him whenever sees them again. Therefore, the complainant told the deceased to be more careful and informed him whenever sees them again. Thereafter as those persons did not appear again, no further action was taken at that point of time, however, the complainant having great suspicion over the applicant-accused of giving contract of killing of his brother to the other coaccused persons, has filed the present complaint. Submissions on behalf of the Applicant-Accused:- 5. Learned advocate Mr. Ashish Dagli for learned advocate Mr. V.A. Mansuri appearing for the applicant-accused has made the following submissions; 5.1 The alleged incident took place on 15.09.2022 for which the first information report came to be lodged on the very same day and the applicant-accused was arrested on 21.09.2022 and is languishing in jail ever since. 5.2 Earlier, an application was preferred by the applicant at the post-charge-sheet stage which came to be withdrawn unconditionally, and now this is a second attempt by the applicant before this Court due to some change of circumstances especially on the medical side. 5.3 As the matter had already been argued at length at the first point of time, learned advocate Mr. Dagli does not want to go into the merits of the matter again, however, this time he has come with a specific case regarding the deteriorating health condition of the applicant-accused which would become more critical if the applicant not being released on bail and kept in custody. 5.4 Just to recapitulate the factual aspects, it is submitted that there was a dispute amongst the brothers with regard to partition of their ancestral property which was later amicably settled between the brothers and the applicant-accused has sold out the property of his share to the third party and settled in U.S.A. permanently. However, unfortunately when he came back to India, the incident in question has occurred and the applicant-accused has been arraigned in the present case only on assumption and presumption alleging that the applicant-accused, keeping grievance against the deceased of having the member of the rival party, has given the contract of his killing to the co-accused who then slain the deceased. 5.5 It is submitted that the applicant-accused is suffering from a serious disease called Rosai Dorfman Diseases (RDD) which is hardly found in two to three people among thousands of people. 5.5 It is submitted that the applicant-accused is suffering from a serious disease called Rosai Dorfman Diseases (RDD) which is hardly found in two to three people among thousands of people. Initially, bleeding started from the nose of the applicant-accused, however, the applicant-accused did not take it seriously but when it started happening in regular intervals, at his request, he was taken to the Navsari Civil Hospital by the jail authority, however, the doctors at the said Hospital could not diagnose the disease due to lack of sufficient diagnostic equipments. Thereafter, the applicant-accused was taken to the Surat Civil Hospital and upon failure of the said hospital in detecting the actual disease, the applicant-accused was then taken to the Civil Hospital at Ahmedabad which also could not be able to find out the ailment which itself indicates the severity of the disease being suffered by the applicant-accused. After all above efforts being made, the applicant-accused applied for temporary bail on the ground of carrying out further medical analysis which was allowed and the applicant-accused was released on temporary bail. 5.6 After being released on temporary bail, the applicant-accused visited the Breach Candy Hospital at Mumbai in the month of November, 2023 and the medical report elicited from the said hospital suggested that the applicant-accused is suffering from Rosai Dorfman Disease as indicated above which is considered to be an initial stage of cancer and the line of treatment for the same is similar to that of the cancer and if proper care and treatment would not be provided to the applicant-accused in time, then the cancer cells would start spreading in the entire body and after some period of time, the situation would become more worsen and incurable. 5.7 Lastly, the applicant-accused is a senior citizen aged about 69 years languishing in jail since 21.09.2022, i.e., for more than one year with the very deteriorating health condition. The weight of the applicant-accused is reducing day by day and his bad health condition has reached to such a level that he cannot even move without getting support from the fellow prisoners and, therefore, it is prayed to enlarge the applicant-accused on bail so that he can take proper treatment at the hospital of his choice which is his fundamental right as enshrined under the constitution. To fortify his submissions, learned advocate Mr. To fortify his submissions, learned advocate Mr. Dagli has relied upon the following case laws; i) In the case of Dr. P. Varavara Rao vs. National Investigation Agency & Anr., reported in 2022 4 KLT (Online) 1261; ii) In the case of Anil Ari vs. State of West Bengal, Special Leave Petition (Cri.) No.6513 of 2008; iii) A decision of this Court in the case of Gulam Abbas @ Gullubhai Nurhomammad Bhurani vs. State of Gujarat, Criminal Misc. Application No.25304 of 2017, decided on 09.01.2018; iv) Another decision of this Court in the case of Ibrahimbhai Musabhai Paleja vs. State of Gujarat, Criminal Misc. Application No.17769 of 2023. decided on 05.10.2023; Submissions on behalf of the respondent-State:- 6. The learned APP Mr. L.B. Dabhi appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. He has submitted that the present one is a successive bail application and the earlier application filed by the applicant-accused at post-charge-sheet stage was not considered by the Court and the same was permitted to be withdrawn, and within no time, the applicantaccused has again come with the present applicant in seeking bail solely on the ground of medical emergency which cannot be considered. Furthermore, adequate treatment is being provided to the applicant-accused by the jail authority. It is further submitted that the documents produced by the applicant-accused along with the memo of the application indicates that there is no definite opinion given by any expert doctor that the applicant-accused is having any symptoms of cancer. Learned APP Mr. Dabhi has submitted that, therefore, considering the role attributed to the applicant-accused and the seriousness of the offence, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. Submissions on behalf of the original complainant:- 7. The present bail application has also been vehemently opposed by learned advocate Mr. Darshil Brahmbhatt appearing for the original complainant by submitting that the applicant-accused is having the citizenship of the U.S.A. and if he is released on bail, there are all possible chances of him being fled away from the country. Learned advocate Mr. The present bail application has also been vehemently opposed by learned advocate Mr. Darshil Brahmbhatt appearing for the original complainant by submitting that the applicant-accused is having the citizenship of the U.S.A. and if he is released on bail, there are all possible chances of him being fled away from the country. Learned advocate Mr. Brahmbhatt would further submit that the name of the applicant-accused is there in the FIR from the very beginning as he was the prime suspect behind the gruesome murder of the brother of the complainant. The police papers available on record reveals that this is a case of contract killing and the applicant-accused has hired the other co-accused on payment of Rs.5,00,000/- as the contract amount which has been handed over by the accused No.6, who happens to be the nephew of the applicant, to the other co-accused. Learned advocate Mr. Brahmbhatt further submits that the case has already been committed to the Court of Sessions and the trial has also begun and number of witnesses have been examined so far. It is submitted that as the applicant-accused does not have any case on merit, has filed the present application solely on the ground of his ill-health and that too within no time from the withdrawal of his earlier application. He further submits that all the accused persons are in judicial custody and as such there would be no hurdle for the trial court to conclude the trial within a short span of period and, therefore also, the bail application of the applicant may not be entertained and the discretion should not be exercised in favour of the applicant-accused. In support of his submissions, learned advocate Mr. Brahmbhatt relies upon the following decisions; i) In the case of Rajesh Ranjan Yadav @ Pappu Yadav vs. CBI Thr. Its Director, reported in 2008 (1) SCC 667 ; ii) In the case of Virupakshappa Gouda vs. State of Karnataka, reported in 2017 (5) SCC 406 ; Analysis:- 8. Having heard the learned counsel appearing for the parties and having gone through the materials available on record, the only question that falls for my consideration is whether discretion should be exercised in favour of the applicant-accused in a given facts and circumstances of the case? 9. To the aforesaid question, my answer is in the affirmative for the following findings; 9.1. 9. To the aforesaid question, my answer is in the affirmative for the following findings; 9.1. The under-trial is admittedly aged about 69 years who is suffering from a serious ailment which, upon preliminary examination, found to be the initial stage of cancer. 9.2 The health of the under-trial in the backdrop of such advanced age and existing medical conditions, faced deterioration upon being kept in custody. There can be no doubt about the fact that a person of such advanced age upon being incarcerated would suffer complications induced by the physical and mental stress that such incarceration brings about. The court needs to take notice of this aspect of the matter while considering the prayer for bail made on behalf of the under-trial. 9.3 A perusal of the papers pertaining to the journey of the under-trial in and out of the hospitals, be they hospitals attached to the jail or Government hospitals or even private hospitals, would show that there had been a consistent deterioration in the health condition of the under-trial. Learned advocate for the applicant referred to large number of documents pertaining to the admission of the under-trial in various hospitals as well as the documents throwing lights upon the nature of the disease being faced by the applicant-accused. It was pointed out that the last report of the applicant-accused elicited from the Breach Candy Hospital, Mumbai indicates that the ailment from which the applicant-accused is suffering is called Rosai Dorfman Diseases which is a rare disease found in two to three people amongst thousands of people. 9.4 Now when I am inclined to exercise discretion on the ground of medical exigency, let me throw some light what the RDD is and how endanger it to the life of a person if proper and regular treatment not being taken in time. What is Rosai-Dorfman Disease? Rosai-Dorfman disease (RDD) is a rare, benign condition that involves an overgrowth of white blood cells called histiocytes. It usually causes swollen lymph glands in your neck, but the overgrowths can also affect your skin and other organs. Symptoms, treatment options and likely outcomes vary from person to person. How common is Rosai-Dorfman disease? Rosai-Dorfman disease is rare. About 1 in every 2,00,000 people get RDD. In the United States, about 100 new cases are diagnosed annually. It usually causes swollen lymph glands in your neck, but the overgrowths can also affect your skin and other organs. Symptoms, treatment options and likely outcomes vary from person to person. How common is Rosai-Dorfman disease? Rosai-Dorfman disease is rare. About 1 in every 2,00,000 people get RDD. In the United States, about 100 new cases are diagnosed annually. 9.5 From the above, what I can gather about the said disease is that the same is benign, which means it doesn’t spread to other parts of your body like malignancies (cancer) but can still, the growths involved with RDD can impact organs and cause complications if proper and regular treatment would not be provided to the person suffering from the same. 9.6 Looking to the peculiar facts and circumstances brought before the Court, it would be apt to refer to and rely upon the first proviso to Section 437(1)(i) and (ii) of the Cr.P.C., which reads thus; "437. When bail may be taken in case of non- bailable offence xxx xxx xxx Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm:” 9.7 Thus, a plain reading of the aforesaid proviso makes it clear that notwithstanding the stringent provisions of Section 302 of IPC which provides for death penalty or for a life imprisonment, the court certainly has power to consider the prayer for grant of bail purely on health and medical grounds. Further, the power of the court under the proviso to Section 437 (1)(i) and (ii) of the Cr.P.C. to grant bail to the sick and infirm was unaffected by the stringent nature of the provisions of Section 302 of IPC and the same could not take away the power of the trial court and certainly not the power of this court to grant bail on health and medical grounds. In this regard, I would like to refer to and rely upon the decision of the Gauhati High Court in the case of National Investigation Agency v. Redaul Hussain Khan, (2010) 5 Gauhati Law Reports 704 and the decision of the Bombay High Court in the case of Ms. In this regard, I would like to refer to and rely upon the decision of the Gauhati High Court in the case of National Investigation Agency v. Redaul Hussain Khan, (2010) 5 Gauhati Law Reports 704 and the decision of the Bombay High Court in the case of Ms. Purnima Upadhyay v. State of Mharashtra & Ors., 2015 SCC Online Bom 5989, wherein a Division Bench of the Bombay High Court, while dealing with the application of the accused charged under the UAPA, has held that “an accused under UAPA could be granted bail on health grounds, despite the fact that his bail application had been rejected on merits on the touchstone of Section 43D(5) of UAPA.” 9.8 This Court has also found that there was recognition in International Systems of Jurisprudence to the proposition that an accused deserved to be granted bail on health grounds if his continued incarceration was detrimental to his health status. In this regard, I may refer to and rely upon the judgment of the European Court of Human Rights in the case of Holomiov v. Moldova, decided on 07/02/2007 in Application No.9852 of 2003 and Hummatov v. Azerbaijan, decided on 29/02/2008 in Application No.13413 of 2004. 9.9 In both these judgments, the European Court of Human Rights found that the health status of the accused, who was behind bars and the nature of treatment given to him demonstrated that his continued incarceration was in conflict with his health status, which necessitated a direction to release such an accused from custody. 9.10 The last medical report elicited from the Breach Candy Hospital, Mumbai, upon preliminary examination, suggests that the applicant-accused is suffering from Rosai Dorfman Diseases which may be considered to be the initial stage of cancer. Therefore, the under-trial could certainly not be fit for being kept in prison, given the lack of facility to monitor the health of the under-trial or to give any kind of treatment in case of emergency. The under-trial could not be detained in prison as it would risk his life and there was every possibility of the health of the under-trial deteriorating, necessitating further rounds of being admitted to hospitals, which was fraught with risk of hospital acquired infections and such other complications. The under-trial could not be detained in prison as it would risk his life and there was every possibility of the health of the under-trial deteriorating, necessitating further rounds of being admitted to hospitals, which was fraught with risk of hospital acquired infections and such other complications. The Court further notices that the local or the nearby situated hospitals even could not be able detect the actual disease and, therefore, the applicant-accused had to seek temporary bail and went to hospital at Mumbai from where the ailment was detected and as the disease with which the applicant-accused is suffering, requires constant and regular monitoring, it is not possible for the jail authority to often take the applicant-accused at Mumbai for the purpose of treatment or rather would also not be possible for the applicant-accused to frequently seek respites from the court for the purposes of his treatment and, therefore, it is better if he is released on bail so that he can easily get treatment without there being any difficulty. 9.11 Keeping the under-trial in custody would make his health condition more deteriorating, leading to worsening of health or more, which is also not in the interest of prosecution also, because the under-trial himself desires to face trial to clear his name and the prosecution is certainly interested in seeing that he is made to face the trial. Therefore, there is no question of the under-trial avoiding trial, upon being released on bail on health grounds with some stringent conditions. In such a situation, this court ought to exercise its powers not only under the provisions of Section 437(1)(i) and (ii) of the Cr.P.C. but also as a Constitutional Court to uphold the right to life of the under-trial under Article 21 of the Constitution. 9.12 The under-trial has a right to health under the right to life guaranteed by Article 21 of the Constitution of India and, therefore, in my opinion, this court as a Constitutional Court should exercise its prerogative writ to direct the release of the under-trial forthwith, in view of his health condition and advanced age. 9.12 The under-trial has a right to health under the right to life guaranteed by Article 21 of the Constitution of India and, therefore, in my opinion, this court as a Constitutional Court should exercise its prerogative writ to direct the release of the under-trial forthwith, in view of his health condition and advanced age. Moreover, the admitted facts in the present case demonstrated that during the very short span of incarceration, time and again, the respondent authority had to take the applicant-accused for treatment at various hospitals at Navsari as well as other cities of the State, however, the said hospitals did not have such equipments that could detect the actual disease and, therefore, the continued incarceration of the under-trial is incompatible with his health condition, thereby violating his right to health under Article 21 of the Constitution of India. 9.13 The Hon'ble Supreme Court in catena of decisions, has held that even though the prisoner may be kept in custody in terms of procedure established by law, such a person is not denuded of the fundamental rights guaranteed under Part III of the Constitution. It was submitted that even within the four walls of the prison, the right to life of a prisoner stood guaranteed under Article 21 of the Constitution as recognized in various judgments. This included the rights of prisoners to meet their family members, access to proper food and water, access to proper medical treatment, the right to intermingle with other prisoners, right to speedy trial and such other rights, so as to ensure that prisoners were not reduced to mere animal existence or vegetable subsistence. This included the rights of prisoners to meet their family members, access to proper food and water, access to proper medical treatment, the right to intermingle with other prisoners, right to speedy trial and such other rights, so as to ensure that prisoners were not reduced to mere animal existence or vegetable subsistence. In this context, I would like to refer to and rely upon the decisions of the Hon'ble Supreme Court in the case of D. Bhuvan Mohan Patnaik v. State of U.P., (1975) 3 SCC 185 , Sunil Batra (I) v. Delhi Admn., (1978) 4 SCC 494 , Sunil Batra (ii) v. Delhi Admn., (1980) 3 SCC 488 , T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68 , Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 , Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104 , Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 , Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658 , Sjatrigjam Cjaijam v. Union of India, (2014) 3 SCC as also the judgment of the Rajasthan High Court in Vaman Narayan Ghiya v. State of Rajasthan, AIR 2013 Raj. 35 . 9.14 Thus, the position of law, as it emerges from various pronouncements of the Hon'ble Supreme Court and the High Courts, is that not only is a prisoner not deprived or denuded of his fundamental right guaranteed under Article 21 of the Constitution of India, when he is confined within the four walls of a prison but in special circumstances the walls of the prison can be breached to allow release of an accused from custody, subject his being put to conditions which would act as a safety net to take care of the apprehensions of the State or prosecuting agency with regard to the availability of such a prisoner to face trial. Even denying bail to the applicant-accused when fully made aware about his critical health condition and the repercussions thereof if not provided adequate treatment, would be equivalent to imposition of death sentence to the applicant-accused. Even denying bail to the applicant-accused when fully made aware about his critical health condition and the repercussions thereof if not provided adequate treatment, would be equivalent to imposition of death sentence to the applicant-accused. 9.15 I am conscious of the fact that entertaining the present application would lead to deluge of applications for release of inmates from jail on health grounds, however, such an apprehension cannot repress the Court in releasing the prisoners from custody on health grounds where such grounds are genuinely made out. 9.16 Taking any other view in the matter would amount to diluting rights available to prisoners to claim relief on health grounds under Article 21 of the Constitution, particularly when material available on record indicates that continued incarceration of such persons would amount to endangering their life. Another significant aspect of the right pertains to the manner in which prisoners of advanced age, suffering from various health ailments, are to be treated. The prisoners of advanced age like the under-trial, who is about 69 years old, and such other prisoners suffering from various health ailments induced by old age when put beyond bars, certainly face the danger of their health conditions worsening and accelerating their journey towards the end of their life. At this stage, nobody is in a position to tell us within how much time, the trial would be completed. When such is the situation, I am of the opinion that the present application deserves consideration. 10. At this stage, nobody is in a position to tell us within how much time, the trial would be completed. When such is the situation, I am of the opinion that the present application deserves consideration. 10. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11822019221371 of 2022 registered with the Navsari Town Police Station, Navsari, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injuries to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned, except for the purpose of getting treatment from the Breach Candy Hospital at Maharashtra with prior intimation to the court concerned; [e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.; [f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; 11. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. 12. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 13. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.