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1994 DIGILAW 182 (KER)

Rosamma v. State of Kerala

1994-04-08

K.G.BALAKRISHNAN

body1994
Judgment :- Petitioner's husband Thomas was convicted by the Additional Sessions Court, Trichur for the offence under S.376 IPC. He is now undergoing imprisonment in the Central Prison, Kannur. The petitioner's husband started his term of imprisonment on 13-10-1988 and as per the letter of the Inspector General of Prison he was transferred to Viyoor Central Jail from the Central Prison, Kannur. From 1911-1989 onwards Thomas has been undergoing treatment under the Nephrology and Urology department of the Calicut Medical College. It is alleged that Thomas is having serious kidney problems and he requires expert medical treatment. Expert medical treatment is available in Calicut Medical College Hospital. He was discharged from the Calicut Medical College Hospital on 18-1-1993. He was being given medicine as advised by the Medical College doctor. The petitioner contends that Thomas was not given any medicine by the jail authorities of the Central Prison, Kannur. According to the petitioner, complete medical expense of her husband is to be made by the State Government and if there is any negligence on the part of the jail authorities that amounts to clear violation of the petitioner's husband's right to life guaranteed under Art.21 of the Constitution. Petitioner, therefore, prays that there shall be a writ of mandamus directing the respondents 1 and 2 to ensure that her husband is provided with medicines prescribed by the doctor of the Calicut Medical College Hospital. 2. A statement is filed on behalf of the Jail Superintendent, Kannur. It is alleged that Muhammedkutty alias Thomas alias Baby was convicted and sentenced to imprisonment for 10 years and to pay a fine of Rs. 2,000/- under S.376 IPC and rigorous imprisonment for two years under S.324 IPC. Both sentences were ordered to be run concurrently. The sentence was modified by the High Court and reduced to a period of seven years. He was admitted in the Central Prison, Kannur on 12-3-1993. On 15-3-1993, he was examined by the doctor and extra-food was prescribed in addition to the normal food. On 2-6-1993 he was examined by the prison doctor and was referred to the Medical College Hospital. He was admitted in the Medical College Hospital and on discharge he was advised to continue the medicines prescribed. The medicines prescribed by the medical college hospital were supplied from the jail. The medicines which were not available in the jail were purchased from outside. He was admitted in the Medical College Hospital and on discharge he was advised to continue the medicines prescribed. The medicines prescribed by the medical college hospital were supplied from the jail. The medicines which were not available in the jail were purchased from outside. The convict never complained of any lapse on the part of the jail authorities. A report of the medical officer is also filed along with the counter affidavit. 3. I heard the petitioner's counsel and the Government Pleader. The main contention raised by the petitioner's counsel is that her husband was under the expert treatment of the doctor attached to the medical college hospital, Calicut and the medicines prescribed by this doctor were not given,to the convict and this is an illegality committed by the jail authorities. But this contention is denied by the Superintendent of the Jail. In the report of the medical officer of the Central Prison, Kannur these allegations are specifically denied. It is alleged that after he was discharged from the medical college hospital, Calicut it was advised that he must have an injection of Amikac in 1250 BO, and these medicines are supplied by the jail authorities after purchasing it from outside as these medicines are not available in the jail hospital. 4. In the additional affidavit filed by the petitioner the averments in the counter affidavit of the jail Superintendent are denied. According to the petitioner Dr, Thomas Mathew of the Calicut Medical College has prescribed certain medicines and these are not being given to him. It is also alleged in the counter affidavit that some of the medicines given to the petitioner by the Medical College Doctor was not prescribed by the Jail Doctor. The counsel for the petitioner also wanted that the petitioner may be allowed to supply medicines of her choice and that the authorities shall be directed to give these medicines to the convict. The counsel further contended that the failure of the jail authorities to give medicines prescribed by the expert doctor is violative of the fundamental rights guaranteed to the convict under Art.21 of the constitution. References were made to various decisions of the Supreme Court. 5. It is true that the jail authorities have got a duty to give medical facilities to the convict. Sufficient rules are incorporated in the Prisons Act. References were made to various decisions of the Supreme Court. 5. It is true that the jail authorities have got a duty to give medical facilities to the convict. Sufficient rules are incorporated in the Prisons Act. Ss.37, 39 and 40 of the Travancore-Cochin Prisons Act and S.37 of the Prisons Act 1894 are some of the provisions enacted to ensure medical facilities to the convicts. The petitioner has no case that her husband was denied medical facilities. The complaint of the petitioner is that there is no adequate medical facilities and that the petitioner's husband shall be given all the medicines prescribed by his private doctor. If the doctor attached to the jail is satisfied that the convict is to be referred to any other hospital for better treatment that can be allowed under the provisions of the Travancorc Cochin Prisons Act. The Superintendent of Prison can also pass orders under S.40 of the Travancore Cochin Prisons Act, for special treatment of the convict in any hospital outside the prison. The contention of the petitioner is that her husband shall be allowed to have special treatment by the doctor of his own choice and all the medicines prescribed by such doctor is to be given to the patient. In the original petition the petitioner prays that there shall be a direction to respondents 1 and 2 to the effect that the petitioner's husband is provided with medicines and medical check up at Medical College Hospital, Calicut. 6. It is for the Superintendent o f jail to pass appropriate orders when such a request is made by the convict or his relatives. The doctor attached to the prison also should be satisfied whether the convict requires such a special treatment. I do not think that the convict has got a absolute right to seek special treatment under all circumstances. The conviction itself is a curtailment of his civil rights. If any restriction is imposed regarding his movement that is a part of the sentence imposed on him. The denial, if any, by the authorities in giving special medical care on valid grounds cannot be construed as violation of the fundamental rights of the convict guaranteed under Article 21 of the constitution. 7. If any restriction is imposed regarding his movement that is a part of the sentence imposed on him. The denial, if any, by the authorities in giving special medical care on valid grounds cannot be construed as violation of the fundamental rights of the convict guaranteed under Article 21 of the constitution. 7. References were made to series of cases like Shersingh v. State of Punjab (1983 (3) SCC 344), Sunil Batra v. Delhi Administration (1978 (4) SCC 494), Sunil Batra II v. Delhi Administration (1980 (3) SCC 48), Hussainar Khatoon and others v. Home Secretary of State of Bihar (1980 (1) SCC 98), Francis Coralie Kullin v. Administrator of U.T. of Delhi (1981(1) SCC 608) and Bhuvan Mohan Patnaik v. State of A.P. and others (1975 (3) SCC 185). These are cases dealing with the rights of citizens guaranteed under Art.21 of the Constitution. In Slier Singh v. State of Punjab it is stated that "it is true that Art.21 stands like a sentinel of human misery, degradation and oppression, the trial sentence, the incarceration and final execution of the sentence must be just„ fair and reasonable." 8. In Sunil Batra's case (1978 (4) SCC 494) the Supreme Court held that "Prisoner is not wholly stripped of constitutional protection by reason of imprisonment, and that the convicts are not wholly denuded of their fundamental rights." 9. In Hussainar Khatoon and others v. Home Secretary of State of Bihar (1980 (1) SCC 98) the Supreme Court held that the under trial prisoners were ordered to be released on the ground that they had been in jail for a period longer than the maximum term for which they could have been sentenced. 10. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981 (1) SCC 618) the Supreme Court emphasised that "Right to life includes right to live with human dignity and all that goes along with it, and it was held that right to live enshrined by Art.21 cannot be restricted to mere animal mistake and it means something much more than just physical survival." 11. In Bhuvan Mohan Patnaik v. State of A.P. and others (1975 (3) SCC 185) the Supreme Court held that "the denial of amenities to the prisoners or their poor maintenance are matters of jail reforms and they do not necessarily constitute an encroachment on the right guaranteed under Art.21 of the Constitution. 12. In Bhuvan Mohan Patnaik v. State of A.P. and others (1975 (3) SCC 185) the Supreme Court held that "the denial of amenities to the prisoners or their poor maintenance are matters of jail reforms and they do not necessarily constitute an encroachment on the right guaranteed under Art.21 of the Constitution. 12. From the analysis of the above decisions, I do not think that it cannot be said that the prisoner has got a right to say that the should be examined by an expert doctor of his choice and all the medicines prescribed by such doctor be given to the patients. It is for the jail authorities and the doctors attached to such institutions to take a decision in the matter. If their decisions are wrong or illegal that may be a matter for judicial review. On the materials furnished in this case, I do not think that the petitioner is entitled to get any relief's. The Original Petition is without any merit and it is dismissed.