IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL APPEAL No.174/2019 BETWEEN WASEEM AHMED S/O MOHAMMED NASEERULLA AGED ABOUT 34 YEARS R/AT NO 1209, B-32 BDA FLATS, AUSTIN TOWN BENGALURU – 560 047 ... APPELLANT (BY SRI. MOHAMMED TAHIR, ADV., ACCESS LAW) AND STATE BY NIA HYDERABAD REP. BY SPECIAL PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU – 560 001 ... RESPONDENT (BY SRI. P. PRASANNA KUMAR, SPL.PP) THIS CRIMINAL APPEAL IS FILED BY THE APPELLANT/ACCUSED NO.2 UNDER SECTION 21 OF NATIONAL INVESTIGATION ACT PRAYING TO SET ASIDE THE ORDER REJECTING HIS BAIL PETITION BY THE HON’BLE XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES), BENGALURU IN SPL.C.C.NO.181/2017 DATED 25.01.2019 AT ANNEXURE-A AND MAY BE PLEASED TO ALLOW THE APPEAL ORDERING TO RELEASE HIM ON BAIL FOR THE PERIOD OF 3 MONTHS TO ENABLE HIM TO UNDERGO THE SURGERY OF HIS LEFT KNEE FOLLOWS WITH POST SURGERY IN CR.NO.124/2016 ON THE FILE OF COMMERCIAL STREET POLICE STATION, RC.NO.04/2016-
17 ON THE FILE OF NATIONAL INVESTIGATION AGENCY FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS 120(B) AND 302 READ WITH 34 OF IPC AND SECTIONS 16(1)(a), 18 AND 20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is filed by Accused No.2 seeking grant of bail in Spl. C.C. No.181/2017 (in connection with Crime No.124/2016 of Commercial Street Police Station, Bengaluru) pending on the file of the XLIX Additional Civil and Sessions Judge, Bengaluru, the Special Court for trial of NIA Cases at Bengaluru.
2. The appellant/Accused No.2 was charged for the offences punishable under Sections 120(B) and 302 r/w. 34 of IPC and also under Section 16(1)(a), 18 & 20 of the Unlawful Activities (Prevention) Act,1967.
3. The trial Court after considering the grounds urged by the appellant/accused No.2, including the medical grounds, has rejected the bail application. While rejecting the application, the trial Court, in order to take care of the situation, has also directed the Superintendent of Central Prison, Parappana Agrahara, Bengaluru, to confirm himself as to whether all the facilities including instrumentations, etc. are available either at Victoria Hospital or at any Government Hospitals in Bengaluru so as to conduct the proposed surgery to Accused No.2 (the appellant herein). The trial court also taken care by directing the concerned to the effect that, in the event of non- availability of required instruments, the Superintendent of Central Prison, Parappana Agrahara, Bengaluru, shall forthwith make necessary arrangements to procure the required instruments for the proposed surgery on rental basis, basing upon the advise given by the medical Authority concerned and also directed that, the Superintendent of Central Prison, Parappana Agrahara, Bengaluru, shall see that the proposed surgery be done at the earliest and he shall make proper report of compliance in this behalf to the Court, at the earliest.
4. Before this court also, the Respondent- State (NIA) has filed objections. Along with the objections, the learned counsel appearing for the respondent-NIA has also produced certain documents including a letter dated 04.02.2019 written to the Chief Superintendent of Central Prison, Bengaluru, by the Chief Medical Officer, Central Prison Hospital, Bengaluru, stating that, Mr. Waseem Ahmed UTO- 12256 (the appellant herein) has been admitted at Victoria Hospital, Bengaluru on 30.01.2019 for the planned surgery/Procedure. It is further stated that all necessary arrangements for the proposed surgery/procedure (arranging for Arthroscopic Instruments and Devices) have been arranged and surgery as proposed would be done shortly as scheduled by the treating Orthopaedics Doctor of Victoria Hospital, Bengaluru.
5. In view of the above said letter, it appears the Victoria Hospital at Bengaluru has taken care of the situation by getting necessary surgical instruments and prepared themselves to conduct surgery to Accused No.2 (appellant herein).
6. In order to confirm the necessary arrangements stated to have been made and also the facilities which are presently available to take care of the patient (accused), during the pre and post- surgery period, this court has directed the learned counsel for the Respondent-State (NIA) to keep present the Doctor, who is working in Victoria Hospital, Bengaluru and also the Chief Medical Officer of Central Prison Hospital and as well as the Superintendent of Central Prison, Parappana Agrahara, Bengaluru who are in the helm of affairs. In pursuance of the said direction issued by this court, Dr.Ramachandra, S., the Assistant Professor, Orthopedics, attached to the Victoria Hospital, Dr. Uma M., the Chief Medical Officer of Central Prison Hospital, Bengaluru and Sri. M. Somashekar, Chief Superintendent of Central Prison, Bengaluru, are present before this court.
7. On enquiry, Dr. Ramachandra S., has submitted before the court that, actually for conducting of the surgery to appellant date was fixed on 04.02.2018, but on that day, the patient (appellant/accused herein) has refused to undergo surgery and therefore, they could not conduct the surgery on that particular day.
8. Today, the learned counsel for the appellant undertakes before this court that, he will instruct his client to undergo surgery, which is proposed to be fixed shortly.
9. Dr. Ramachandra S., who is present before the Court has given his assurance to this court that, they will conduct surgery of the appellant on Monday, the 11th of Feburary, 2019. If the accused/appellant co-operates with them, they will definitely conduct surgery in a proper and correct method, as they have already prepared for that and they have made all arrangements for the proposed surgery of the appellant. Dr. S. Ramachandra has also submitted before the Court that the Victoria Hospital is having all the facilities including Western Commode in order to facilitate the appellant to stay therein during pre and post surgery period.
10. Dr. Uma, the Chief Medical Officer and Sri.
M. Somashekar, the Chief Superintendent of Central Prison, Bengaluru, who are present before the court have also given their assurance to this court that, the post-surgery situation of the accused/appellant will be taken care of by them in the Jail itself. They also submitted before the court that, the hospital attached to the Central Prison at Bengaluru, is also having the Western Commode facility and as well as in the Jail also, such facility is available and that they will take care of the patient in the Jail, after his surgery.
11. Learned counsel for the appellant/accused has also submitted that, a relative of the appellant/accused may also be permitted to visit the Victoria Hospital and stay there, where the accused is undergoing surgery during the stay of the accused therein and permit such person to take care of the patient (accused) during treatment period.
12. We do not think that, the said request of the appellant is so unreasonable to reject the same. However, it is made clear that, only one relative of the appellant may be allowed by the Police to visit the patient (accused) and ascertain his needs during that particular period of pre and post surgery of the accused, by staying outside the hospital ward and meet and talk with the appellant outside the ward, for a reasonable time, till the accused is shifted to the Jail.
13. In view of the above, we do not find any strong reason to allow the bail application of the appellant/accused. However, a direction has been issued to the concerned authorities viz., Dr. Ramachandra S., Smt. Uma and Sri. M. Somashekar to take care of the appellant/accused during the period of pre and post surgery and particularly, Dr. Ramachandra S. is directed to take care of the appellant during the period of surgery in Victoria Hospital.
14. A report of compliance of the above said direction shall be submitted by Sri. P.Prasanna Kumar, Spl. P.P. appearing for the Respondent-State (NIA), after all the said medical treatment and procedures are over.
Office to send a copy of this order to the Doctors and Chief Superintendent of Central Prison, mentioned above, forthwith for compliance.
SD/- JUDGE SD/- JUDGE KGR*