Gujarat High Court
Bhabhlu Naajbhai Dhadhal Through ... vs State Of Gujarat & on 31 August, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.MA/20088/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR TEMPORARY BAIL) NO. 20088 of
2017
In CRIMINAL APPEAL NO. 609 of 2016
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BHABHLU NAAJBHAI DHADHAL THROUGH PRUTHVIRAJBHAI
BHABHALUBHAI DHANDHAL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. MAULIK M SONI, ADVOCATE for the Applicant(s) No. 1
MR JK SHAH, ADDITIONAL PUBLIC PROSECUTOR for the
RESPONDENT(s) No. 1
RULE NOT RECD BACK for the RESPONDENT(s) No. 1-2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 31/08/2017
ORAL ORDER
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. This application has been preferred by the prisoner, through his son Pruthvirajbhai Bhabhalubhai Dhandhal, with a prayer to enlarge the prisoner on temporary bail for a period of thirty days as the prisoner is suffering from a brain tumor, as detected by a private doctor in Rajkot and requires further medical treatment.
2. The prisoner is undergoing life imprisonment in Page 1 of 7 HC-NIC Page 1 of 7 Created On Thu Aug 31 23:09:24 IST 2017 R/CR.MA/20088/2017 ORDER connection with offences punishable under Sections 302, 147, 148, 224, 149, 324, 398, 397 and 307 of the Indian Penal Code, 1860.
3. It is stated in Paragraph4 of the application that the prisoner was treated by the Jail Doctor, who also opined that he was suffering from a brain tumor and informed the applicant that it is better if the prisoner takes further treatment at Civil Hospital, Ahmedabad. There is an averment in the said paragraph that although the son of the prisoner had requested the concerned Doctor, several times, to provide all medical papers of his father, however, the Doctor refused to give the medical papers to him and had stated that without the prior permission of the High Court, he would not supply any papers.
4. In order to verify the averments made in Paragraph4 of the application, this Court had directed the applicant, to disclose the full particulars regarding the name of the Doctor and the date on which the Doctor examined the prisoner, by the qorder dated 14.08.2017. The additional affidavit was Page 2 of 7 HC-NIC Page 2 of 7 Created On Thu Aug 31 23:09:24 IST 2017 R/CR.MA/20088/2017 ORDER filed and Rule was issued in the application on 22.08.2017.
5. Today, when the application is taken up, Mr.J.K. Shah, learned Additional Public Prosecutor, has submitted a Medical Report dated 27.08.2017, issued by Dr.J.K. Nathvani, Medical Officer, Central Prison, Rajkot. The contents of this Report reveal that the prisoner was examined by Dr.J.K. Nathvani on 27.08.2017 and he was found to be suffering from the following:
"(1) Diabetes and Hypertension for which (treatment available at PDU hospital Rajkot), and he is getting the treatment on regular basis, apart from that.
(2) He is having pituitary macroadenoma.
(3) Pituitary macroadenoma that is a tumour of pituitary gland in basal brain (4) This requires a major brain surgery and surgical treatment for that is not available at gov. hospital Rajkot.
(5) The surgery for pituitary macroadenoma requires rest from one to three weeks duration if Page 3 of 7 HC-NIC Page 3 of 7 Created On Thu Aug 31 23:09:24 IST 2017 R/CR.MA/20088/2017 ORDER no complications arise.
6. It has further been stated in the Medical Report that the prisoner has been sent several times to the Government Hospital, Rajkot and at Ahmedabad in the respective departments, for treatment that is still going on. Though the name of the Doctor was not disclosed in Paragraph4 of the application, however, in the additional affidavit, the applicant has stated thus:
"2] The deponent herein most respectfully submits that the deponent herein is the son of the accused who is in jail and undergoing the sentence for the punishment under Section 302. The deponent submit that on 20th July 2017 between 10.30 to 11 a.m. and 5 to 6.30 p.m. Deponent had gone for visit his father in jail and it was informed that Dr.Nathwani has treated the father of the deponent and upon request being made by the present deponent for the supply of the medical papers so as enable the present deponent to make an appropriate application along with those medical papers for the purpose of temporary bail so as to enable himself to get his father treated in hospital, but the said Dr.Nathwani has stated that he could not handover the medical papers to the deponent but if the Honorable Court Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Aug 31 23:09:24 IST 2017 R/CR.MA/20088/2017 ORDER directs to give medical papers he would be certainly able to give those papers.
3] Furthermore the deponent herein mostly respectfully submits that on 17th of August 2017 the deponent has again visited the jail and thereby made a written request to get the details of his visit of 20th of July 2017, but said return request has been refused to be accepted and therefore he could not get return details of his visit to his father."
7. In the above background, we have heard Mr.Maulik M. Soni, learned advocate for the applicant and Mr.J.K. Shah, learned Additional Public Prosecutor for the respondents.
8. It is clear from the additional affidavit that it was Dr.J.K. Nathvani, who had examined the prisoner on the previous occasions as well and had refused to hand over the medical papers regarding the prisoner to his son, without an order of this Court. We are rather surprised at this approach of Dr. Nathvani, as the patient is supposed to be apprised of his own medical condition. The Doctor is not barred from giving a medical certificate to his patient and this does not Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Aug 31 23:09:24 IST 2017 R/CR.MA/20088/2017 ORDER require any orders from the Court. Just because the application for temporary bail is pending, it does not mean that the certificate indicating the medical status of the patient cannot be issued, either to the patient or, in this case, to his son.
9. It is clear from the Certificate dated 27.08.2017, issued by Dr.J.K. Nathvani, that the prisoner requires a major brain surgery and the surgical treatment for that is not available at the Government Hospital, Rajkot.
10. Taking into consideration the averments made in the application, which are supported by the Certificate dated 27.08.2017, issued by Dr.J.K. Nathvani and as the Jail conduct of the applicant is stated to be good, we are inclined to grant the prayer made in the application.
11. We notice that the prisoner has undergone only one year and ten months of sentence. However, considering the seriousness of the disease suffered by him and the complicated procedure required, we are of Page 6 of 7 HC-NIC Page 6 of 7 Created On Thu Aug 31 23:09:24 IST 2017 R/CR.MA/20088/2017 ORDER the view that the prayer made in the application deserves to be granted in toto.
12. In view of the above, this Court passes the following order:
The prisoner shall 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 the expiry of the aforesaid period, the prisoner shall surrender before the concerned Jail authority forthwith.
13. The application is allowed. Rule is made absolute.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) piyush Page 7 of 7 HC-NIC Page 7 of 7 Created On Thu Aug 31 23:09:24 IST 2017