Srinagar, December 16 :
…
The Jammu and Kashmir and Ladakh
High Court has dismissed the appeal filed by
former Bar Association President Mian Abdul
Qayoom seeking bail on medical and
humanitarian grounds, holding that the record
clearly demonstrates that he has been all along
being provided with the advance and
specialised treatment whenever necessitated
and that no life-threatening medical emergency
exists warranting his release at this stage.
Dismissing his plea Justices Sindhu Sharma
and Justice Shahzad Azeem observed,
“.. In absence of any alarming or urgent
necessity supported by medical report to
suggest that the respondents failed to provide
the requisite medical facility, in that event, the
discretion for granting bail is unwarranted”.
The Bench was hearing an appeal challenging
the order passed by the 3rd Additional Sessions
Judge, Jammu, Designated Court under the NIA
Act, whereby Qayoom’s application for bail on
medical grounds had been rejected.
The case has its genesis in the murder of
advocate Babar Qadri, who was shot by
unknown terrorists on September 24, 2020,
leading to registration of FIR under Sections 307
IPC, 7/27 of the Arms Act and Sections 16/18 of
the Unlawful Activities (Prevention) Act.
Following Qadri’s death, Section 302 IPC was
added.
After investigation, a charge-sheet was laid
against six accused in May 2021, excluding the
appellant. However, on an application filed by
the father of the deceased seeking further
investigation, the probe was transferred to the
State Investigation Agency in July 2023. During
further investigation, the alleged complicity of
the appellant surfaced and he was arrested on
June 25, 2024.
The trial was later transferred from Srinagar to
the Designated NIA Court at Jammu by the High
Court, in view of the surcharged atmosphere
and allegations of the appellant’s influence,
which, according to the Court, made it difficult
to conduct a free and fair trial at Srinagar. A
supplementary charge-sheet was filed against
the appellant on December 19, 2024, and
charges under Sections 16(1)(a), 18 and 38 of
the UAPA were framed.
Before the High Court, the appellant assailed the
rejection of bail and sought enlargement solely
on medical and humanitarian grounds. It was
contended that the 77-year-old appellant was
suffering from multiple ailments. It was further
argued that he required constant monitoring
and palliative care, which could not be
managed within jail.
Opposing the plea, the Union Territory
submitted that the appellant had been regularly
provided requisite medical treatment, including
specialised care, and that his latest medical
examination indicated a stable condition. They
also pointed to the nature and gravity of the
allegations, asserting that the appellant was
actively involved in terrorist-related activities
and that his influence posed a threat to
witnesses.
While analysing the plea, the Bench observed
that since bail was sought on medical and
humanitarian grounds, the Court was required
to examine whether the appellant’s health
condition disclosed any life-threatening
situation or inability of jail authorities to provide
adequate treatment. The Court noted that it was
admitted by the appellant himself that during
his incarceration, he was operated upon at the
Super Speciality Hospital, GMC Jammu, and a
permanent pacemaker was implanted.
Referring to the latest medical status report
dated October 20, 2025, the Court recorded that
the appellant was under regular follow-up in the
departments of cardiology, urology, radiology,
endocrinology and ophthalmology, and that the
report “abundantly makes it clear that the
health condition of the appellant is also stable.”
Rejecting the argument that frequent hospital
visits demonstrated deteriorating health, the
Bench observed,
“It is not every sickness or infirmity that entitles
the accused to be enlarged on bail, unless jail
authorities stated that medical facilities in the
jail is not enough for the under trial.”
The Court reiterated the settled position that bail
on medical grounds is to be granted only in
exceptional circumstances where the medical
condition is so serious that it cannot be
adequately treated in custody and the requisite
facilities are unavailable in jail. It held that the
initial burden to establish such circumstances
lay on the appellant, which had not been
discharged.
The Bench further emphasised that the
statutory bar under Section 43-D(5) of the UAPA
could not be overridden merely on grounds of
prolonged incarceration or humanitarian
considerations. It noted that the appellant had
failed to demonstrate any overwhelming
material carving out an exception to the
statutory embargo.
Taking note of the earlier transfer of
investigation to the SIA and shifting of trial from
Srinagar to Jammu due to allegations of
influence and threats to witnesses, the Court
held that the appellant’s release at this stage
would prejudice the constitutional right to a free
and fair trial, particularly when a majority of
prosecution witnesses were yet to be examined.
Addressing the plea for palliative care, the Court
clarified,
“Palliative care is not a separate or independent
ground that may override the medical ground,
rather it is a subset of medical ground therefore,
once bail on medical grounds do not find favour
with the Court, same hold equally good on the
ground of palliative care”
Summing up its conclusions, the Bench held
that the record clearly showed that the appellant
had been provided comprehensive medical care
throughout his custody and that there was no
medical emergency or inability on the part of
authorities to manage his condition.
Observing that the appellant had “all along
being provided with the advance and
specialised treatment whenever necessitated,”
the Court dismissed the appeal as devoid of
merit and upheld the order of the trial court
rejecting bail.(CNS)
Case Title: Mian Abdul Qayoom Vs UT Of J&K