Gujarat High Court
Dharmesh Prahladbhai vs State Of Gujarat & Anr on 9 August, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.MA/18378/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION
(FOR TEMPORARY BAIL)
NO. 18378 of 2017
In
CRIMINAL APPEAL NO. 1177 of 2016
With
CRIMINAL MISC.APPLICATION NO. 18587 of 2017
In
CRIMINAL APPEAL NO. 1205 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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================================================================
DHARMESH PRAHLADBHAI
SHUKLA & ANR. ....Applicants
Versus
STATE OF GUJARAT & ANR. ...Respondents
===============================================================
Appearance:
Criminal Miscellaneous Application No.18378 of 2017
THROUGH JAIL for the Applicant
MR RONAK RAVAL, APP for the Respondent State
Criminal Miscellaneous Application No.18578 of 2017
MR.HARSH M. KHEMKA, ADVOCATE for the Applicant
MR RONAK RAVAL, APP for the Respondent State
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 09/08/2017
ORAL JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. Both these applications are being decided by a common order for the reason that medical certificates, issued by the same doctor namely Dr. A.R.Singh, Surgeon, Ahmedabad Central Jail, Ahmedabad, are on record in both applications, Page 2 of 16 HC-NIC Page 2 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT which have become an issue for consideration by this Court. The facts of the said applications being different, they would be dealt with individually.
Facts of Criminal Miscellaneous Application No.18378 of 2017:-
2.1 This application, dated 10.07.2017, has been preferred by the applicant, through jail, with the prayer to enlarge him on temporary bail for a period of 21 days, in order to enable him to take treatment for his problem of hemorrhoids (piles) from which the applicant is stated to be suffering from quite some time and for which, according to him, he is not being treated properly in jail.
2.2 The applicant is undergoing sentence of seven years imprisonment for the offences punishable under Sections 436 read with 149, 449, 435, 452, 147, 148, 295, 153(A) (1)(a)(b), 143, 186, 447 and 188 of the Indian Penal Code, 1860. 2.3 This Court had issued Rule on 25.07.2017, making it returnable on 01.08.2017. On the returnable date, learned Additional Public Prosecutor had submitted a certificate dated 27.07.2017 issued by Dr.R.A.Musadia, Medical Officer, Central Jail Dispensary, Ahmedabad. A bare perusal of this certificate Page 3 of 16 HC-NIC Page 3 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT indicates that it is issued on the basis of material available on record, without conducting any physical examination of the applicant after the passing of the order dated 25.07.2017. In view thereof, this Court directed the Jail Authorities to get the applicant physically examined and thereafter to produce on record the medical certificate and status regarding the health of the applicant. In the said order, it is specifically stated that the Court would not expect a casual certificate like the one dated 27.07.2017, to be repeated.
2.4 On the next date of hearing on 04.08.2017, learned Additional Public Prosecutor submitted another medical certificate dated 03.08.2017, issued by Dr.A.R.Singh, Surgeon, Ahmedabad Central Jail, Ahmedabad, which was taken on record. As noted in the order dated 04.08.2017, the Court found the said certificate to be issued in a casual manner, relying upon old records. It was noticed that in the earlier certificate dated 27.07.2017, the applicant was stated to have been examined on 18.07.2017 by Dr.R.A.Musadia but the certificate dated 03.08.2017 referred only to the dates of
22..05.2017 and 10.06.2017 but not thereafter. Not satisfied with the said certificate, this Court passed a specific order dated 01.08.2017.
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2.5 Despite the said order, Dr.A.R.Singh has issued the certificate dated 03.08.2017 in a most casual manner, regarding the health position of the applicant as it stood in the months of May, 2017 and June, 2017, without indicating his latest health condition. As this was another example of the casual approach on the part of the concerned doctor, we thought it proper to direct him to remain present on 09.08.2017.
2.6 As directed, Dr.A.R.Singh is present before us in person today. When he was asked regarding the manner in which he has issued the certificate dated 03.08.2017, he stated that he had examined the applicant before issuing the certificate. However, a perusal of the certificate dated 03.08.2017 does not reveal that the applicant was examined physically. Neither is it stated what was found upon such examination. 2.7 We are not satisfied by the reply given by Dr.A.R.Singh with regard to the certificate dated 03.08.2017, which only reveals the status of the complaint of the applicant as it stood on 22.05.2017 and 10.06.2017 but not thereafter. No recent physical examination appears to have taken place at all. Nor has the result of such examination, if any, been placed on record. The manner in which Dr.A.R.Singh has dealt with the Page 5 of 16 HC-NIC Page 5 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT applicant appears to be in total contravention of our previous order dated 01.08.2017, wherein we had specifically directed that the applicant be physically examined and only thereafter the medical certificate regarding the health of the applicant be produced on record. It appears that the jail authorities, as well as the medical authorities in the jails, are taking the orders of the Court very lightly by obeying them in the breach rather than in letter and spirit. Such an attitude could invite serious consequences. At the present, we leave it to the concerned jail authorities as well as Health Department of State of Gujarat to deal with this issue. If we do not find any improvement, we may be constrained to pass further orders.
Facts of Criminal Miscellaneous Application No.18587 of 2017:-
3.1 This application has been preferred by the wife of the prisoner with a prayer to enlarge the prisoner on temporary bail for a period of 30 days in order to enable him to get further treatment for his spinal problem.
3.2 The prisoner is undergoing sentence of seven years imprisonment for the offences punishable under Sections 436 read with 149, 449, 435, 452, 147, 148, 295, 153(A) (1)(a)(b), Page 6 of 16 HC-NIC Page 6 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT 143, 186, 447 and 188 of the Indian Penal Code, 1860 and under Section 135(1) of the Gujarat Police Act. 3.3 It is stated in the application that the prisoner is suffering from a spinal problem and requires physiotherapy. He is also suffering from backache. The narration in the application makes interesting reading. It is stated that the prisoner was sent to the Orthopedic Department, Civil Hospital, Ahmedabad, on 05.06.2017. Upon examining him, drugs were prescribed and physiotherapy was advised. It is categorically stated that, thereafter, no further treatment has been provided to the prisoner. The prisoner was required to be taken to the hospital on 08.06.2017, 22.06.2017, 03.07.2017 and 12.07.2017. However, he was not taken to the hospital on any of these dates. He, therefore, preferred an earlier application seeking temporary bail.
3.4 Thereafter, this Court directed the medical authorities in jail to examine the prisoner and place on record the medical certificate. This is how the medical certificate dated 14.07.2017, issued by Dr.A.R.Singh, Surgeon, Ahmedabad Central Jail, Ahmedabad, came to be placed on record, wherein it was stated that the prisoner shall be taken to the hospital on 18.07.2017, for physiotherapy. However, the prisoner was not Page 7 of 16 HC-NIC Page 7 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT taken to the hospital on that date.
3.5 Relying on the said certificate dated 14.07.2017 issued by Dr.A.R.Singh, this Court refused to grant temporary bail to the prisoner, on the ground that he is being properly and regularly treated for his backache and his treatment is still continuing. This is clear from the order dated 14.07.2017 passed by this Court in Criminal Miscellaneous Application No.17422 of 2017. As nothing further was done by the Jail authorities in order to provide medical treatment to the prisoner even after passing of the said order, his wife has approached this Court by way of the present application. 3.6 On 04.08.2017, this Court passed an order, referring to the dates mentioned in paragraph: 6 of the application, when the prisoner was supposed to have been taken to the Orthopedic Department of the Civil Hospital, Ahmedabad, but was not taken. Even today, this Court has not been apprised why the prisoner not taken for treatment as advised and no satisfactory explanation could be offered by the learned Additional Public Prosecutor, even after taking instructions from the concerned officer from the jail.
3.7 Dr.A.R.Singh has stated orally before the Court that the prisoner could not be taken to the Orthopedic Department of Page 8 of 16 HC-NIC Page 8 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT the Civil Hospital on the dates mentioned in the application, as the 'police japta' was not provided. Though this aspect has not been mentioned in the medical certificate dated 03.08.2017, as it has been stated before us by Dr.A.R.Singh, we take it that treatment, as required, was not provided to the prisoner on the ground that the concerned authorities did not consider it fit, proper, or convenient, to provide the 'police japta' in order to take him to the hospital.
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.
5. Mr.Harsh M. Khemka, learned advocate for the prisoner states that, though it is stated in the medical certificate dated 03.08.2017 that the "patient is also provided extra medical diet", no such extra medical diet has been provided to the prisoner. He states, upon oral instructions, that four to five months ago, the prisoner was given an extra packet of milk, but that was because he was suffering from constipation.
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However, no extra diet has been given pursuant to the certificate dated 03.08.2017.
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.
-: DISCUSSION :-
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 In case of the applicant of Criminal Miscellaneous Application No.18378 of 2017, the concerned doctor has referred the applicant to the Civil Hospital, Ahmedabad but the applicant was not taken there for treatment because the 'police japta' was not provided for the said purpose.
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7.2 Insofar as the prisoner of Criminal Miscellaneous
Application No.18587 of 2017 is concerned, at least on four or five occasions an appointment was fixed at the Orthopedic Department of the Civil Hospital, Ahmedabad. However, no 'police japta' was provided to take the prisoner to the hospital on any of the dates mentioned in the application. As a result, the prisoner has remained without the proper prescribed treatment for his spinal problem, for months. 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 any one 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. When there is an issue regarding the health of a person, delay can cause disaster and may even cost the Page 11 of 16 HC-NIC Page 11 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT 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 [Criminal Miscellaneous 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 Page 12 of 16 HC-NIC Page 12 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT 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 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 Page 13 of 16 HC-NIC Page 13 of 16 Created On Mon Aug 21 03:15:04 IST 2017 R/CR.MA/18378/2017 JUDGMENT clear.
8. In both these applications, we are inclined to grant the prayers made by the applicant - prisoners solely on the ground of the indifference shown by the jail authorities towards their medical treatment. It is clear to us that the applicant - prisoners are not getting the prescribed treatment as advised by the jail doctors. We do not want the prisoners to suffer further or the disease to deteriorate. We, therefore, deem it proper to allow both these applications.
8.1 In view of above, Criminal Miscellaneous Application No.18378 of 2017 is allowed. Hence, we pass the following order:
The applicant shall be released on temporary bail for a period of 21 days from the date of his actual release upon 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.
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8.2 In view of above, Criminal Miscellaneous Application No.18587 of 2017 is allowed. Hence, we pass the following order:
The prisoner shall be released on temporary bail for a period of 30 days from the date of his actual release upon 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 prisoner shall surrender before the concerned Jail authority forthwith.
8.3 If any of the two above prisoners commits any infraction of this order, it would be the responsibility of the jail authorities.
9. Rule, in both these applications, is made absolute, to the aforesaid extent.
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. Page 15 of 16
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(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) Amit Page 16 of 16 HC-NIC Page 16 of 16 Created On Mon Aug 21 03:15:04 IST 2017