Akshay Pratap Singh Alias Gopal Ji v. State Of Uttar Pradesh

S.S. Kulshrestha, J.

1. Heard the learned Counsel for the applicant and also the learned A.G.A. and perused the materials on record.

2. The application under Section 482 of the Code of Criminal Procedure (the Code) has been brought on behalf of Sri Aksay Pratap Singh alias Gopal Ji for quashing the order dated 16.9.2003 passed by the learned Designated Court under the Prevention of Terrorism Act (P.O.T.A.) on the application moved on behalf of the accused applicant for providing him treatment in any of the hospitals/medical colleges in judicial custody as he is suffering with serious ailments. It has been contended by him that he was lodged there at Mirzapur Jail in Crime Case No. 3/03, State v. Udai Pratap Singh and Ors. under Section 3/4 of P.O.T.A., Police Station, Kunda, district Pratapgarh where medical facilities are not available. Looking to his serious ailments he was got examined by Dr. A. K. Dubey and he found the accused applicant to be suffering with acute pain in spinal cord and other ailments such as fistula. He was sent to S.G.P.G.I., Lucknow for examination and treatment and from there he was again sent back to the jail. Some of the developments which had taken place till 5.9.2003 for that the proceedings have already been drawn by the learned Designated Court by issuing notices to all concerned defying the order of that Court. That part of the order or proceedings drawn by the learned Special Judge, P.O.T.A., Kanpur Nagar have not been assailed in these proceedings and so whatever the narrations have been made in the petition in that regard need not be mentioned. Now the petition is confined only for providing medical treatment to the accused applicant in any of the hospitals/medical colleges as his condition is deteriorating and for that purpose application was also moved before the learned designated court but he rejected that application merely by observing that such a device has been adopted by the accused applicant with a view to defy the courts order passed earlier. In this regard it has been mentioned that it is the duty of the Medical Officer/Chief Medical Officer to take care of the prisoner and if he is suffering from a disease which cannot be properly treated in the jail, he should be sent to hospital/medical college wherefrom he can take proper treatment. The denial of the medical aid to the prisoner would adversely affect to his health.

3. In this regard it has also been mentioned that the prisoner has the pride in himself and he cannot be deprived of the medical aid in any hospital or elsewhere if it is not available in jail. In this regard it shall not be off the point to mention that continuous interpersonal experience in group sessions at Government level or judicial pronouncements made, the State Government issued certain guidelines for the improved conditions of the daily lives of prisoners. Those guidelines are more than a Standard Minimum Rules. It requires a human person to govern and administer the prison. Here in this context Rule 1058 of U.P. Jail Manual may be extracted as under:

1058. Removal to district hospital for treatment.-(a) on the advice of the Civil Surgeon and after obtaining the sanction of the Inspector General, the Superintendent may remove to the Local District Hospital any prisoner who is suffering from a disease which cannot be properly treated in the jail or who should undergo a surgical operation which cannot be properly performed in the jail. If the Civil Surgeon is of opinion that the delay necessary to obtain the sanction of the Inspector General would endanger the prisoners life the transfer may be made and a report submitted to the Inspector General for formal sanction.

(b) Civil Surgeons shall, however, exercise the utmost possible care in recommending prisoners for treatment in outside institutions. Jail hospitals are equipped to meet all ordinary requirements, and it should seldom be necessary to remove prisoners for treatment elsewhere except for surgical operations.

(c) A patient should not be removed to the district hospital from the jail until actually required for the operation or the treatment.

(d) The Superintendent shall, when sending the patient, inform the hospital authorities that he is still under duress.

(e) Whenever a prisoner is transferred to a district hospital under this paragraph the Supdt. shall detail a guard of one head warder and three warders of the permanent staff, for the purpose of watch and ward over the prisoner and shall appoint temporary men for work in the jail for such period as may be necessary with the sanction of the Inspector-General provided that the number of head warders and warders deputed for the purpose of watch and ward under the provisions of this paragraph shall not at any time exceed 25 per cent of the permanent strength and that the Supdt. shall call upon the police for assistance whenever it would otherwise be necessary to depute more than 25 per cent of the permanent strength for this purpose.

(f) The Superintendent shall make an inquiry from the hospital from time to time as to convicts progress. It is important that with a view to prevent escapes or other misconduct the patient should not be kept in the district hospital longer than absolutely necessary and his early return to the jail after treatment should be arranged for. He may subsequently be admitted to the jail hospital for his convenience if necessary.

(g) When the prisoner is due to be released before the time when the Civil Surgeon expects that the prisoner will be discharged from hospital after treatment, the prisoner should be released at once, provided that the period remitted shall not, without the previous sanction of the Inspector General exceed three months.

4. It is inherent in the guidelines that "Medical treatment should be provided for any physical disability which are impeding their rehabilitation, trial etc. From the order of the learned Sessions Judge dated 9.9.2003, it appears that he also considered the medical treatment to be essential. Considering all these aspects the learned Special Judge P.O.T.A., Kanpur also directed on 9.9.2003 to the Superintendent Jail, Kanpur to get him (undertrial medically examined. He was examined by the panel of doctors namely (i) Dr. R. N. Dwiwedi, Prof. and Head Medicine, (ii) Dr. Jayant Bajpai, Prof. and Head Orthopedic, and (iii) Dr. N. B. Singh, Head, Surgery and they reported as under:

Medical Problems:

Patient C/o - Dispepsia - Irregular Bowel habbits - Pain Rt. great Toe, tingling in character and radicular Neurological Examinations revealed:

- Decrease sensation below L 3 in Rt. lower Exty.

- S.L.R. positive on Rt. lower Exty. (30 approxy).

Clinical Examination of Abdomen revealed:

- Epigastric deep tenderness and also deep tenderness on colon of Lt. Flank Abdomen.

Clinical Possibilities:

(1) N.U.D./ A.P.D./ Peptic Ulcer (2) Irretable bowel syndrome (3) Sacral Root Compression on S 3, S 4, probably secondary to P.I.D. S 3, S 4 with Sacro-ileitis (Orthopedic opinion given below) (4) Bleeding per rectum (surgical opinion given below).

Suggested line of investi-gations to confirm/Rule out clinical diagnosis:

For problem:

(1) Upper G.I. Endoscopy ;

(2) Colonoscopy (facility not available in this Institution) ;

(3) X-ray Sacroililic joint A.P. view ;

X-ray Lumber spine A.P. 7 Lateral view ;

M.R.I. Lumber spine (facility not available in this institution) ;

(4) Colonoscopy (facility not available in this institution).

Orthopedic Problems:

On clinical examination of the patient and on routine X-ray examination (which has been done in this institution) it appears that the patient is having:

- Bilateral Sacroileitis ;

- with Rt. Radiculopathy.

Suggested line of investigations:

- Urine Culture and Sensitivity ;

- Stool examination ;

- C.A.T. scan Lumbo - Sacral spine and both Sacroil Joints (facility not available in this institution) ;

- M.R.I. Lumbo Sacral spine and Lumbo Sacral Nerve roots with contrast.

Surgical Problems:

The patient was examined on 12.9.2003 by Bedside P/R Examination and Proctosocopy examination. There is evidence of grade II Haemorrhoids.

Suggested Investigations:

- Stool/ Urine/ Blood Examination ;

- Colonoscopy by specialist (facility not available in this institution).

5. On the strength of such report and expressing other problems pertaining to his health an application was moved on behalf of accused applicant that he be not removed from the Hospital, Kanpur. The said application was rejected on 16.9.2003. It has also been urged that he has now been lodged at Mirzapur Jail.

6. In this regard it may be mentioned that the corner stone of social justice, from which custodial legality takes its substance, is the Constitution. These all the aspects of compassionate-correctional components were considered by the Apex Court in the cases of:

(1) Giasuddin : AIR 1977 SC 1926 [LQ/SC/1977/210] ; (2) Bares : AIR 1983 SC 278 [LQ/SC/1982/197] ; (3) Bhem Singh : AIR 1986 SC 494 [LQ/SC/1985/357] ; (4) Patnaik : AIR 1980 SC 1535 [LQ/SC/1980/216] ; (5) Prem Shanker : AIR 1980 SC 1535 [LQ/SC/1980/216] ; (6) Upendra Baxi v. State of U. P., Writ Petition No. (Crl) 1900 of 1981 ; (7) N. Nagendra Rao and Co. v. State of A. P. : (1994) 6 SCC 205 [LQ/SC/1994/819] : 1994 SCC 1609 ; (8) Maneka Gandhi v. Union of India : (1978) 1 SCC 248 [LQ/SC/1978/27] ; (9) State of Maharashtra v. Prabhakar Pandurang Sanzgiri : AIR 1966 SC 424 [LQ/SC/1965/218 ;] ">AIR 1966 SC 424 [LQ/SC/1965/218 ;] [LQ/SC/1965/218 ;] ; (1966) 1 SCR 702 [LQ/SC/1965/218 ;] ">(1966) 1 SCR 702 [LQ/SC/1965/218 ;] [LQ/SC/1965/218 ;] : 1966 CriLJ 311 [LQ/SC/1965/218 ;] ">1966 CriLJ 311 [LQ/SC/1965/218 ;] [LQ/SC/1965/218 ;] ; (10) D. Bhuvan Mohan Patnaik v. State of A. P. : (1975) 3 SCC 185 [LQ/SC/1974/270] ; 1974 SCC 803 ; (11) Charles Sobraj v. Supdt. Central Jail, Tihar : (1978) 4 SCC 104 [LQ/SC/1978/227] ; 1978 SCC 542 ; (12) Francis Coralie Mullin v. Administrator, Union Territory of Delhi : (1981) 1 SCC 608 [LQ/SC/1981/25] : 1981 SCC 212 ; (13) Sunil Batra (II) v. Delhi Admn. : (1980) 3 SCC 488 [LQ/SC/1979/502] : 1980 SCC 777 ; (14) Sunil Batra v. Delhi Admn. : (1978) 4 SCC 494 [LQ/SC/1978/223] : 1979 SCC 155 ; (15) Nilabati Behera v. State of Orissa : (1993) 2 SCC 746 [LQ/SC/1993/275] ; 1993 SCC 527 ; (16) Death of Swainder Singh Grower, In re : 1995 Supp (4) SCC 450: 1994 SCC 1464 ; (17) D. K. Basu v. State of W. B. : 1997 ACR 277 (SC): (1997) 1 SCC 416 [LQ/SC/1996/2231] : 1997 SCC 92 ; relied on Challa Ramkonda Reddy v. State of A. P. : AIR 1989 AP 235 [LQ/APHC/1989/17] .

7. Even there is also the Universal Declaration of Human Rights, 1948 and the International Covenant of Civil and Political Rights, 1966, to which our country is signatory envision a social order which respects human dignity and the worth of the human person. Article 5 of the Universal Declaration and Article 7 of the International Covenant provide:

no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The Covenant further mandates in Article 10 (1) that:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

8. The approach of the case is to be now made in the light of our Constitution and the rights assured to the undertrial under our laws. Does a prisoner lose all his rights on being sentenced to a prison or do his rights remain suspended during the period of imprisonment to be revived on his release The answer to this, in the context of the Indian Constitution, is simple. A prisoner does not forfeit his citizenship nor does he lose his civil rights, except such rights as freedom of movement, which are necessarily lost because of the very fact of imprisonment. This position is now beyond doubt by reason of the authoritative pronouncements of the Supreme Court. Chandrachud, J., as the learned Chief Justice then was, has summed up the scope of curtailment of freedom of the prisoners in D.B.M. Pathak v. State of A. P. AIR 1974 SC 2094, thus:

Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in prison house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practice a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.

9. A similar view was expressed by the United States Supreme Court in a motion made by an inmate of the Nebraska State prison, on behalf of himself and other inmates. His complaint was that prison disciplinary proceedings did not comply with the due process clause of the Federal Constitution. Justice White speaking for the Court said in that case, Charles Wolf v. Mc. Donnel 41 L. Ed 2d 935 at 950:

Petitioners assert that the procedure for disciplining prison inmates for serious misconduct is a matter of policy raising no constitutional issue. If the position implies that prisoners in State institutions are wholly without the protections of the Constitution and the due process clause, it is plainly untenable. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a "retraction justified by the considerations underlying our penal system". Price V. Johnston 334 US 266; 92 L. Ed. 1356; (1948) 68 S Ct. 1049. But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.

Wolffs case is referred to in Sunil Batras case : AIR 1978 SC 1675 [LQ/SC/1978/223] , Krishna Iyer J., observed in that case at page 1691 (paragraph 57) thus:

So the law is that for a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. The omens are hopeful for imprisoned humans because they can enchantingly invoke Maneka (1978) 14, 19 and even 21, to repeal the deadening impact of unconscionable incarceratory inflictions based on some lurid legislative text or untested tradition. As the twin cases unfold the facts we have to test the contentions of law on this broader basis.

Desai, J., speaking for himself and on behalf of Chief Justice and two other Judges said in that case:

It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the constitutional rights unless their liberty has been constitutionally curtailed (See Procunier v. Martineg, 1974 (4) L. Ed. 224 at p 248). However, a prisoners liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for a crime does not reduce the person into a non-person administrator and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards (see Charles Wolff v. Mc. Donnel (1974) 41 L. Ed. 935 at p 973). By the very fact of the incarceration prisoners are not in a position to enjoy the full panoply of fundamental rights because these very rights are subject to restrictions imposed by the nature of the regime to which have been lawfully committed.

10. Having found that the prisoners undergoing sentence of imprisonment or detention as under-trials in the jails of the State, are entitled to the enjoyment of the fundamental rights and the guarantee of such fundamental rights is available to them except in so far as such rights may have to be curtailed or restricted by reason of the fact of improvement. The fundamental rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated on technical grounds.

11. In the State of A. P. v. Challa Ramkrishna Reddy : (2000) 5 SCC 712 [LQ/SC/2000/792 ;] ">(2000) 5 SCC 712 [LQ/SC/2000/792 ;] [LQ/SC/2000/792 ;] : AIR 2000 SC 2083 [LQ/SC/2000/792 ;] ">AIR 2000 SC 2083 [LQ/SC/2000/792 ;] [LQ/SC/2000/792 ;] the Apex Court observed that:

A Prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.

So far as fundamental rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortuous action of its officers by raising the plea of immunity for sovereign acts or acts of the State which must fall.

12. In the given circumstances when the panel of doctors found the accused applicant to be suffering with serious ailments and the line of treatment was also suggested, it was obligatory on the part of learned Special Judge to have sent him to the hospital/medical college for treatment. For the foregoing reasons, the impugned order dated 16.9.2003 is quashed. The Special Judge is directed to send the accused applicant to G.S.V.M. Medical College, Kanpur in judicial custody where he shall be admitted and proper medical treatment on the suggested line of investigation shall be given to him. Periodical report in a gap of two days shall be submitted by the same panel of doctors with regard to the condition of the applicant and if his further detention at Medical College is felt by them to be not essential on such report the Special Judge shall be at liberty to send the accused applicant in judicial custody to jail.