- (1.) S. S. Kulshrestha, J. Heard the learned Counsel for the applicant and also the learned A. G. A. and perused the materials on record.
(2.) THIS application under Section 482 of the Code of Criminal Procedure (the Code) has been brought on behalf of Sri Akshay Pratap Singh @ Gopalji for quashing the order dated 16-9-2003 passed by the learned Designated Court under the Prevention of Terrorism Act (POTA) on the application moved on behalf of the accused applicant for providing him treatment in any of the Hospitals/medical College 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 others, under Section 3/4 of POTA, P. S. 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, POTA, 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 this 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 Court's 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. 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 of the point to mention that continuous interpersonal experience in group session at Government level or judicial pronouncement 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 and prisoner who is suffering from a disease which cannot be properly performed performed 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 prisoner's 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 any time exceed 25 percent of the permanent strength and that the Supdt. shall call upon the police for assistant whenever it would otherwise be necessary to depute more than 25 present of the permanent strength for this purpose. (f) The Superintendent shall make an inquiry from the hospital from time to time as to convict's progress. It is important that with a view to prevent escapes or other misconduct the patient should not be kept in the district hospital than longer 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 months". 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 'pota', Kanpur also directed on 9-9-2003 to the Superintendent Jail, Kanpur to get him (under trial) medically examined. He was examined by the Penal of Doctors namely (i) Dr. R. N. Diwedi, Prof. and Head Medicine, (ii) Dr. Jayant Bajpai, Prof. and Head Orthopaedic 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 L3 in Rt lower Exty. - SLR positive On Rt lower Exty. (30 approxy.) Clinical Examination of Abdomen revealed: Epigestric deep tenderness and also deep tenderness on colon of LT. Flank Abdomen. Clinical Possibilities : 1. NUD/apd/peptic Ulcer 2. Irretable bowel Syndrome 3. Sacaral Root Compression of S3 S4, probably secondary to PID S3 S4 with Sacro-ileitis (Orthopaedic opinion given below) 4. Bleeding per ractum (surgical opinion given below) Suggested line of investigations 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 AP view, X-ray Lumber spine AP 7 Lateral View MRI 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 rutine 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 - CAT scan Lumbo- Sacral spine and both Sacroil Joints (facility not available in this institution) MRI 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 ).
(3.) 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. In this regard it may be mentioned that the corner stone of social justice, from which custodial legality takes it substance, is the Constitution. There all the aspects of compassionate- correctional components were considered by the Apex Court in the cases of: (1) Giasuddin (AIR 1977 SC 1926), (2) Bares (AIR 1983 SC 278), (3) Bhem Singh (AIR 1986 SC 494), (4) Patnaik (AIR 1980 SC 1535), (5) Prem Shanker (AIR 1980 SC 1535), (6) Upendra Baxi v. State of U. P. , Writ Petition No. (Cri.) 1900 of 1981, (7) N. Nagendra Rao and Co. v. State of A. P. , (1994) 6 SCC 205: 1994 SCC (Crl.) 1609; (8) Maneka Gandhi v. Union of India, (1978) 1 SCC 248; (9) State of Maharashtra v. Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424; (1966) 1 SCR 702: 1966 Cri LJ 311, (10) D. Bhuvan Mohan Patnaik v. State of A. P. , (1975) 3 SCC 185: 1974 SCC (Cri) 803; (11) Charles Sobraj v. Supdt. , Central Jail Tihar, (1978) 4 SCC 104: SCC (Cri) 542; (12) Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608: 1981 SCC (Cri.) 212; (13) Sunil Batra (II) v. Delhi Admn. , (1980) 3 SCC 488: 1980 SCC (Cri.) 777; (14) Sunil Batra v. Delhi Admn. , (1978) 4 SCC 494:1979 SCC (Cri.) 155; (15) Nilabati Behera v. State of Orissa, 1993 JIC 587 (SC) : (1993) 2 SCC 746: 1993 SCC (Cri.) 527; (16) Death of Swainder Singh Grower, In re, 1995 Supp (4) SCC 450: 1994 SCC (Crl) 1464; (17) D. K. Basu v. State of W. B. , 1996 (2) JIC 1541 (SC) : (1997) 1 SCC 1997 SCC 416: (Crl) 92 relied on Challa Ramkonda Reddy v. State of A. P. , AIR 1989 A. P. 235.;