Allahabad High Court
Mehtab Alam vs State Of U.P. on 27 May, 2013
Bench: Vinod Prasad, Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 42 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5278 of 2009 Appellant :- Mehtab Alam Respondent :- State Of U.P. Counsel for Appellant :- Virendra Bahadur Singh,Brijesh Sahai,Sudhanshu Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Vinod Prasad,J.
Hon'ble Anjani Kumar Mishra,J.
(Delivered by Hon'ble Anjani Kumar Mishra,J) This case was put up for pronouncement of orders today.
Heard Shri Sudhanshu Srivastava, learned Counsel for the appellant Mehtab Alam and the Learned AGA for the State in respect of the bail prayer of the appellant under Section 389 Cr.P.C. who has been convicted under section 302 I.P.C. in Sessions Trial no:613 of 2007 and sentenced to life imprisonment along with fine.
Reason for seeking bail as has been argued is that the appellant is suffering from Acquired Immuno Deficiency Syndrome (AIDS). Next it was urged that the appellant is in jail since 2007 and in 2010 he was diagnosed with the disease above noted, which therefore, was contacted during the period of imprisonment. The learned Counsel has also filed on record guidelines issued by the World Health Organisation for the care, treatment and prevention of AIDS in places of detention as also the recommendations made by the Royal Society of Canada and The National Advisory Committee on AIDS.
By the order dated 04.02.2013 this Court had called for a report from the Jail Superintendent as also the Jail Doctor, Central Jail Naini, regarding the condition of the appellant, the treatment being given to him and as to whether his treatment could be better managed within or out side jail.
The report in this regard dated 20.02.2013 is on record and we have perused the same. It states that on 31.03.2010, when the appellant was examined for the first time at the A.R.T. Center, S.R.N.Hospital, Allahabad his body weight was 79 kgs but the same has reduced to 61 kgs at the time of making of the report. Thus, it is opined that the health of the appellant is deteriorating. It has further been reported that the appellants' treatment is possible only at the A.R.T. Center, S.R.N.Hospital, Allahabad. However, on occasions, medicines are provided by the Counsellors of the I.C.T.C. after procuring the same from the A.R.T. Centre Allahabad.
Along with the report aforesaid, a photocopy of the Patient Booklet (Card) prepared and issued by the A.R.T. Centre has also been annexed.
The learned AGA has urged that the appellant is a life convict and the fact that he is a patient of AIDS is not sufficient ground to grant him bail. He has placed before us, a series of orders passed by a Division Bench of the Bombay High Court in Bail Application no:371 of 2008 filed in Criminal Appeal no:706 of 2006, Rama @ Ramdas Ramchandra Ubale versus The State of Maharashtra and others.
It emerges from the order dated 08.03.2010 passed by the Bombay High Court in the case aforementioned that the appellant therein, a life convict had preferred an application, through jail, stating that he was suffering from HIV and had prayed for temporary bail so as to avail of proper medical facilities. The opening paragraph of the said order reads ..?
" In this matter, this court is required to consider an important question as to the manner in which a prisoner who is lodged in jail may rescue himself from contacting HIV or any serious disease of such a nature and in case, when a prisoner is suffering from such disease, what action the jail authorities and the State should take to see that the prisoner may get proper medical treatment while in jail."
The order further goes on to issue directions to the State of Maharashtra. Some of the said directions which are relevant to the instant case are quoted below :
" (i) ICTC personnel may visit the prisons in the state where regular ICTC facilities are not available, at least once in a week:
ii.The State may try to increase the strength of sanctioned posts of medical officers in order to see that every prison may have medical officers whose services can be utilised at the prisons. Till such time, the State is directed to see that a medical officer, who is in charge of a local dispensary may visit the Centre, where there are no medical facilities regularly and at least thrice a week;
iii. ..............
iv. ...............
v.With a view to curb spreading of the AIDS in the jails, the State is directed to educate the prisoners by way of advertisements or by showing documentary films about the risk factor involved in it;
vi.Where a prisoner is suffering from serious disease, the procedure prescribed in Rule 27 of the Maharashtra Prisons (Review of Sentences) Rules, 1972 is required to be followed by the concerned authorities. This should be brought to the notice of the officers in charge of the various prisons in the State of Maharashtra as well as to the medical officers so that these Rules can be properly followed in a given case."
The above cited judgment highlights the dilemma faced by the Courts in the circumstances, as in the instant case where a prisoner is suffering from a deadly fatal disease and there are allegations of lack of proper medical facilities and treatment being provided to him in jail. However, it would be relevant to point out that it is not clear from a perusal of the orders produced by the learned AGA as to whether the Bombay High Court ultimately granted bail to the appellant or not.
We have considered the submissions of the Counsel for the appellant and the Learned AGA and have perused the record.
It is clear from the report dated 20.02.2013 received from the jail authorities that an Anti Retroviral Treatment Centre is functional in the S.R.N. Hospital, Allahabad and an Integrated Counselling and Testing Centre (ICTC) is also functional, where the appellant is being produced regularly for Counselling and treatment. Thus, it cannot be said that the health of the appellant is suffering due to a lack of medical care and treatment. He is being provided medicines as prescribed to him. We have also been led to believe that the treatment of AIDS patients is free of charges and that medicines are provided free of cost.
It also emerges from the card of the appellant, annexed with the report of the Medical Superintendent, Naini Central Jail dated 20.02.2013 that the appellant is not willing to take medicines (Anti Retroviral Treatment). This entry has been made on the card of the appellant by the Medical Officer of the A.R.T. Centre on 02.07.2010.
The contention of the learned Counsel for the appellant that his client contacted AIDS in prison also appears to be unfounded. In paragraph 5 of the affidavit of Mushtaq Ahmed dated 22.11.2010 filed in the instant case, it is stated that the appellant is an old case of HIV and he has been treated in Prince Ali Khan Hospital, Mumbai, before he was confined in jail. In paragraph 7 of the same affidavit it is stated that even during the trial, the appellant had prayed for bail on the ground that he was HIV positive.
At this stage it would be appropriate to refer to and quote Clause 22 of the recommendations made by the Royal Society of Canada, The National Advisory Committee on AIDS and the World Health Organisation, filed by the Counsel for the appellant.
"22. A compassionate release and/or medical parole/probation program should be developed for prisoners with HIV/AIDS.
Currently, compassionate release is only considered for terminally ill prisoners who sicknesses is so advanced that they are near death. Release, at this point, means little other than a transfer of from prison institutions to another form of institutionalisation ? the hospital. New guidelines need to be developed to allow for early parole and probation for medical reasons,' medical parole/probation'. If possible, prisoners living with HIV/AIDS should be released from the penal system as early into their sentences as is thought possible (remembering security concerns). Living with HIV requires a positive and healing environment, not the punishment, violence, and powerlessness that is the norm in prisons.
After considering the circumstances in their totality and looking at the fact that the instant appeal is pending consideration since 2009 and there is little possibility of its being heard in the near future. The appellants' health is deteriorating and he is likely to be more comfortable in the company and care of his immediate family members, we think it fit to release the appellant on bail, on purely compassionate grounds, subject to the following conditions.
1.Before the appellant is released from jail, he and his immediate family members shall be counselled by the Councillors of the ICTC as regards the precautions to be taken by each one of them so as to ensure that the appellant does not pass on the disease to his family members or other persons he may interact with after his release.
2.The appellant shall report every alternate day at the nearest Primary Health Centre/ Community Health Centre/Government dispensary. The personnel present there shall assess and ensure that the appellant is adhering to the A.R.T regime prescribed by the A.R.T. Centre, SRN Hospital, Allahabad.
3.The appellant shall report at the A.R.T. Centre, SRN Hospital, Allahabad for his treatment and follow-up action on the dates specified by the doctors in the Patient Booklet (Card) which is issued to patients undergoing treatment at the said Centre..
4.In case there is any default on the part of the appellant with regard to any of the conditions aforementioned, the concerned authorities will be immediately notified by the medical personnel and an application for cancellation of the bail shall be filed, forthwith, on behalf of the State.
The appellant, Mehtab Alam is directed to be released on bail on his furnishing a personal bond of rupees one lakh and 2 sureties to the like amount to the satisfaction of the trial court concerned in Sessions Trial no: 613 of 2007 under section 302 IPC, Police Station Nawabganj, District Allahabad.
As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this court, forthwith, by the trial judge concerned to be kept on the record of the appeal.
The appellant is allowed one month's time to deposit the entire amount of fine awarded to him.
Let the papers of this case be placed before the Hon'ble The Chief Justice for consideration and if thought fit, to treat the same/ register as a Public Interest Litigation for monitoring and for issuing necessary directions as regards the diagnosis, treatment and care of prisoners suffering from AIDS and other similar communicable fatal diseases who are lodged in various jails in the State of U.P. Order Date :- 27.5.2013 Priyanka