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2017 DIGILAW 1417 (GUJ)

PRAVINBHAI BHALABHAI PARMAR v. STATE OF GUJARAT

2017-08-22

A.J.SHASTRI, ABHILASHA KUMARI

body2017
JUDGMENT : ABHILASHA KUMARI, J. This application dated 18-7-2017 has been preferred by the applicant through Jail, with a prayer to enlarge him on temporary bail for a period of thirty days, as he is suffering from pain due to stones in his kidney and would like to take treatment for the same at his own personal expense. 2. The applicant is undergoing life-imprisonment in connection with the offences punishable under Secs. 302 and 114 of the Indian Penal Code, 1860 and Sec. 135(1) of the Gujarat Police Act, 1951. 3. On 16-8-2017, this Court had issued Rule, making it returnable on 22-8-2017. Today, when the application is taken up, Mr. Ronak Raval, learned Additional Public Prosecutor has submitted a Medical Certificate dated 21-8-2017, issued by Dr. A.R. Singh, Surgeon, Ahmedabad Central Jail. The relevant extract of the certificate is reproduced hereinbelow: "He was examined at Jail dispensary on 21-8-2017, his present complaint was occasional pain left renal area radiating to left lumbar and suprapubic region. Pulse was 80/min regular. B.P. 130/90, his X-ray shows opacity in left renal area. Medications (Diclofenac, Dicyclomine, and Pantoprazole) for pain were prescribed. E.S.W.L. (extra corporeal shock wave lithotripsy) was advised by Deptt. Urology, Civil Hospital, Ahmedabad on 11-3-2017 for 12*8 mm. renal stone in left kidney. He was referred to Urology, Civil Hospital for E.S.W.L. on 18-3-2017, 17-6-2017, 22-7-2017 but Police 'Japta' from Police Head Quarter was cancelled. Reason can be known from Police Head Quarter. Patient is a known case of recurrent left renal calculi. As per the case records available at Jail Dispensary, patient is regularly under treatment and follow-up of Urology Department, Civil Hospital, Ahmedabad." 4. From the above certificate, it is clear that the applicant has been suffering from recurrent left renal calculi for a long period of time. The Jail Doctor has referred him to the Urology Department, Civil Hospital, Ahmedabad, for E.S.W.L. on 18-3-2017, 17-6-2017 and 22-7-2017. It is clearly stated in the said certificate that the Police 'Japta' from the Police Head Quarter was cancelled for reasons best known to the Police Head Quarters. The net result is that due to the cancellation of the Police 'Japta', the applicant was never taken to the Urology Department of the Civil Hospital on the above-mentioned dates. It is clearly stated in the said certificate that the Police 'Japta' from the Police Head Quarter was cancelled for reasons best known to the Police Head Quarters. The net result is that due to the cancellation of the Police 'Japta', the applicant was never taken to the Urology Department of the Civil Hospital on the above-mentioned dates. It is, therefore, clear that the applicant, who has been suffering for a long period of time, has remained without proper treatment from atleast March, 2017, till date, which is a period of about six months. 5. One can imagine the pain, discomfort and distress a patient of renal calculi (Kidney stones) must be facing for a period of six months. Such pain is difficult to endure even by a strong person. There is no reason why a prisoner under the care and custody of the State Government should be made to suffer pain and discomfort due to a known illness and be deprived of medical care, which the State Government is bound to provide him. The applicant has, therefore, been forced to apply for temporary bail in order to get himself treated at his own expense. 6. The reason for not providing timely and required medical treatment to the applicant is a casual one, that is, the cancellation of the Police 'Japta' to take him to the Hospital. We have noticed in several matters that prisoners are not being taken to the concerned hospitals due to the cancellation of the Police 'Japta' for some unknown reason. We wonder whether any reason could be weightier than the life and welfare of the prisoner, who is a human being like anyone of us. It may be true that the prisoner has committed an offence for which he is lodged in Jail, but that does not mean that he should be treated as though he is sub-human and be deprived of the level of care, attention and treatment that his illness demands. 7. In this regard, we have already passed a detailed order dated 9-8-2017 in Misc. Criminal Application No. 18378 of 2017 and the connected matter. That was also a case where the Police 'Japta' was cancelled at the last moment, therefore, this Court has stated as below : "4. 7. In this regard, we have already passed a detailed order dated 9-8-2017 in Misc. Criminal Application No. 18378 of 2017 and the connected matter. That was also a case where the Police 'Japta' was cancelled at the last moment, therefore, this Court has stated as below : "4. The present is yet another glaring example of the gross callousness and indifferent and casual approach on the part of the Jail authorities, insofar as the medical problems of the prisoners are concerned. It is high time that the I. G. Prisons and the Principal Secretary, Health Department, State of Gujarat should look into this aspect and improve the prevailing situation in the Jails in this regard." 8. The other relevant extracts of the said order are reproduced hereinbelow : "6. This aspect also requires some introspection on the part of the Jail authorities. We are shocked that though the State Government provides sufficient funds for the welfare, upkeep, medical facilities and diet of the prisoners, even the extra medical diet, prescribed by the Jail Doctors does not appear to be reaching the prisoners who require it. 7. Both the above discussed applications have one common, glaring similarity, which is the apathetic approach of the Jail authorities with regard to the medical condition of the prisoners and the lack of timely medical examination and treatment to them, in spite of the fact that the Jail doctors have recommended and advised such treatment in different Hospitals, according to their ailments. 7.1. *** *** *** 7.2. *** *** *** 7.3. It may be true that prisoners are lodged in Jail because they have committed infractions of the law. It is for the Court to decide whether or not, they are found guilty of committing the alleged offences. Though, they are prisoners, the Jail authorities may not forget that they are also human beings and require the same medical treatment and care as anyone of us. They have to be treated with the dignity and respect for life due to every citizen of India. Being a Welfare State, the State Government provides sufficient funds to run the Jails and provide proper facilities, food and medical treatment to prisoners. This Court is unable to comprehend why the Police 'Japta' is not being provided in time, in order to take the prisoners to the concerned hospitals for treatment, as advised by the Jail Doctors. Being a Welfare State, the State Government provides sufficient funds to run the Jails and provide proper facilities, food and medical treatment to prisoners. This Court is unable to comprehend why the Police 'Japta' is not being provided in time, in order to take the prisoners to the concerned hospitals for treatment, as advised by the Jail Doctors. When there is an issue regarding the health of a person, delay can cause disaster and may even cost the person concerned his life. Had anyone near and dear to the concerned authorities been taken ill, would such apathy and indifference be shown? We think not. 7.4. As long as prisoners are lodged in prisons run by the State Government, it is the duty and responsibility of the State to take proper and good care of them. The Court cannot countenance the sheer apathy which is writ large in the approach of the Jail authorities towards the prisoners by failing to provide the Police 'Japta' to take them to the concerned hospitals for treatment. Because of this lack of treatment, the prisoners approach the Court with pleas for temporary bail, as they would prefer to spend their own money for their treatment, whether they can afford it or not, when no proper treatment is being provided by the Jail authorities. On top of that, the extra medical diet prescribed by the Jail Doctors does not appear to be reaching the prisoners, as has happened in one case before us (Misc. Criminal Application No. 18587 of 2017). 7.5. We would pose two questions to the Jail authorities, at this stage. If, due to the casual and apathetic attitude of the concerned authorities regarding the health of the prisoners, a medical emergency arises, or a prisoner even loses his life as a result of such apathy, would the Jail authorities take the responsibility for this, along with all legal consequences that would naturally follow? Should not responsibility and accountability be fixed and the erring officer be saddled with the legal consequences? 7.6. The Jail authorities may ponder upon these questions, introspect and take appropriate remedial measures because, if the problem persists, we are afraid that a situation may soon arise when the Court would have to pass stringent orders. 7.7. Should not responsibility and accountability be fixed and the erring officer be saddled with the legal consequences? 7.6. The Jail authorities may ponder upon these questions, introspect and take appropriate remedial measures because, if the problem persists, we are afraid that a situation may soon arise when the Court would have to pass stringent orders. 7.7. We once again reiterate our disapproval of the manner in which medical certificates are being issued by the Jail Doctors without physically examining the prisoner, but only on the basis of old records. This situation has to change as the Court is required to be apprised about the exact medical condition of the prisoner as, it is on the basis of such medical certificates that the Court would be in a position to know whether temporary bail is required to be granted on medical grounds, or not. The seriousness of a medical problem can only be guaged by a Doctor, who is an expert in the field. We, therefore, expect proper medical certificates to be issued after proper physical examination of the prisoner so that the current medical condition and the further line of treatment are made clear. 8. *** *** *** 9. *** *** *** 10. A copy of this order shall be sent to the Inspector General of Prison, and the Principal Secretary, Health Department, State of Gujarat, for information and further necessary action." 9. Despite the passing of the above order which, we hope, has been brought to the notice of the Inspector General of Prisons and the Principal Secretary, Health Department, State of Gujarat, it appears that the practice of cancelling the Police 'Japta' to take the prisoner to the Hospital for treatment, is still prevailing. 10. Prisoners are not free persons, who can walk out of the Jail and get themselves treated at the Hospital for their illnesses. The very fact that they are in the custody of the State Government casts an obligation on the State to provide them not only with food, clothes, proper amenities and facilities, but also proper and timely medical treatment. Prisoners are not free persons, who can walk out of the Jail and get themselves treated at the Hospital for their illnesses. The very fact that they are in the custody of the State Government casts an obligation on the State to provide them not only with food, clothes, proper amenities and facilities, but also proper and timely medical treatment. We have posed three questions to the authorities in the abovementioned order, which we reiterate : (1) Would such indifference, carelessness and apathy in providing proper and timely treatment be tolerated if any person near and dear to the Police or other authorities would be suffering from a health issue such as in the present case? (2) If, as a result of the casual and apathetic attitude of the concerned authorities regarding the health of the prisoner, a medical emergency arises, or a prisoner loses his life as a consequence of such apathy, would the Jail authorities take the responsibility for this, along with all legal consequences that would normally follow? (3) Should not responsibility, accountability and legal consequences, if any, be fixed and the erring officers be saddled with the consequences? 11. It is time that the State, being a Welfare State, gave serious consideration to the issue and direct the taking of prompt and timely measures to improve the situation in order to truly earn the epithet of "Welfare State". We are aware that the State Government provides adequate funds to the Jail authorities for the upkeep, welfare, food, clothes and medical requirements of the prisoners. The functionaries at the top level of the State Government may not even be aware that a situation such as the one in the present case, exists. 12. This Court considers it its duty to point out the lapses in the system wherever found during the course of adjudication of legal issues. This, we have done. Ultimately, it rests upon the State Government to take appropriate remedial measures. Taking into consideration the legal aspect, the prisoner is still a citizen of India and is required to be treated with the dignity guaranteed by Art. 21 of the Constitution of India which also means that he has a right to live a healthy life in Jail, under the custody of the State Government. 13. Taking into consideration the legal aspect, the prisoner is still a citizen of India and is required to be treated with the dignity guaranteed by Art. 21 of the Constitution of India which also means that he has a right to live a healthy life in Jail, under the custody of the State Government. 13. We hope that our observations, which are only made to bring to notice the deficiencies in the system, are taken in the right perspective. We are sure that the endeavours of the concerned authorities would also be to improve the system and remove the lacunae in its working wherever noticed. 14. Insofar as the issue of temporary bail arising in the present application is concerned, it is clear that the applicant has remained without medical treatment atleast from March, 2017 and he is forced to appeal to the Court to release him on temporary bail so that he can take medical treatment at his own expense, whether he can afford it or not. We cannot deprive him of the opportunity to look after his health. We, therefore, consider it appropriate to grant the prayers made in the application. 15. The applicant has prayed for his release on temporary bail for a period of thirty days. Normally, we would not grant the entire prayers. However, the present appears to be a gross case of apathy and indifference, as the Jail Surgeon has certified that the applicant was referred to the Urology Department of the Civil Hospital thrice, but could not be taken due to the cancellation of the Police 'Japta'. We, are therefore, inclined to grant the prayers made by the applicant, in toto. 16. Hence, the following order is passed : The applicant is ordered to be enlarged on temporary bail for a period of thirty days on furnishing a personal bond of Rs. 5,000/- (Rupees Five Thousand Only) and upon the usual terms and conditions, to the satisfaction of the concerned Jail authority. Upon expiry of the aforesaid period, the applicant shall surrender before the concerned Jail authority forthwith. 17. The application is allowed. Rule is made absolute. 18. A copy of this order shall be sent to the Inspector General of Prisons, the Principal Secretary, Health Department and the Additional Chief Secretary, Home Department, State of Gujarat, along with a copy of the order dated 9-8-2017, passed in Misc. 17. The application is allowed. Rule is made absolute. 18. A copy of this order shall be sent to the Inspector General of Prisons, the Principal Secretary, Health Department and the Additional Chief Secretary, Home Department, State of Gujarat, along with a copy of the order dated 9-8-2017, passed in Misc. Criminal Application No. 18378 of 2013 and the order dated 8-8-2017, passed in Misc. Criminal Application No. 18228 of 2017. 19. If matters do not improve regarding the issue of prisoners' health, the Court would henceforth pass appropriate orders, the consequences of which would have to be borne by the concerned authorities. We hope, there would be no need to do so. Application allowed.