State Of U.P. vs Gayatri Prasad Prajapati

CRIMINAL APPEAL NO. 686 of 2020 (arising out of SLP (Crl.) No.4337/2020)

STATE OF U.P. ...APPELLANT(S)

VERSUS

GAYATRI PRASAD PRAJAPATI ...RESPONDENT(S)

O R D E R

ASHOK BHUSHAN,J.

Leave granted.

2. This appeal has been filed questioning the order

dated 03.09.2020 passed by Allahabad High Court,

Lucknow Bench, Lucknow, by which the respondent has

been granted interim bail on medical grounds for a

period of two months while directing listing of the

regular Bail Application No. 5743 of 2019 in the week

commencing from 28.09.2020 for hearing.

Signature Not Verified

3. Digitally signed by MEENAKSHI KOHLI Brief facts of the case necessary to decide this Date: 2020.10.15 16:30:20 IST Reason:

appeal are:-

1 3.1 The respondent, a former minister in the

State of U.P. is an accused in case Crime

No.29 of 2017 under Sections 376(D)/376/511/

504/506 of I.P.C. read with Sections 3/4 of

POCSO Act, Police Station Gautam Palli,

District Lucknow.

3.2 The first information report was registered

against the respondent after an order was

passed by this Court on 17.02.2017 in a Writ

Petition (Crl.) No. 160 of 2016 filed by the

complainant. The respondent was granted bail

by the Additional District and Sessions

Judge, Lucknow vide order dated 25.04.2017,

which bail was cancelled before the

respondent could be released from the jail by

the High Court vide its order dated

26.05.2017 on an application filed by the

State of U.P.

3.3 Another Bail Application No.10101 of 2017

filed by the respondent was again rejected by

the High Court by order dated 14.12.2017. 2 3.4 The respondent was admitted for treatment in

King George Medical University, Lucknow

(hereinafter referred to as “K.G.M.U.”) on

03.05.2019. The respondent moved a Bail

Application No.5743 of 2019 before the High

Court. An application C.M. Case No. 99240 of

2019 was filed by the respondent on

19.08.2019 seeking interim bail on medical

grounds for a period of six months. The

respondent remained admitted in K.G.M.U. from

03.05.2019 to 17.01.2020 when he was

discharged. The High Court passed an order

on 05.03.2020 while hearing the bail

application as well as short term bail

application providing that applicant be sent

to the Department of Urology of K.G.M.U.,

Lucknow, where he should be examined/admitted

as per opinion of doctor concerned. However,

the admission/treatment of the applicant-

accused shall be under the supervision of

police authorities/team to be constituted by

the concerned authority.

3 3.5 The High Court further directed that

applicant-accused may be examined by a

medical board to be constituted by the Vice-

Chancellor, K.G.M.U., Lucknow and the said

report may be placed before the Court.

3.6 On 09.03.2020, the respondent was again

admitted in K.G.M.U. The respondent was

shifted on 04.06.2020 to the Sanjay Gandhi

Postgraduate Institute of Medical Sciences,

Lucknow (hereinafter referred to as

“S.G.P.G.I.M.S.”) for specialised treatment,

S.G.P.G.I.M.S. being multi super-speciality

(a tertiary medical care super-speciality

hospital). The medical board evaluated the

respondent and submitted the report on

10.06.2020. An affidavit was also filed

before the High Court regarding the medical

reports prepared by S.G.P.G.I.M.S. and

K.G.M.U. On 29.06.2020, the respondent was

again shifted back to K.G.M.U. The High

Court by impugned order dated 03.09.2020 4 allowed the interim bail application of the

applicant on medical grounds.

3.7 The State of U.P. aggrieved by the order

dated 03.09.2020 has come up in this appeal.

4. We have heard Shri S.V. Raju, learned Additional

Solicitor General for the appellant. Dr. Rajeev

Dhawan, learned senior counsel has appeared for the

respondent.

5. Learned ASG for the appellant submits that the

respondent was given due treatment in the K.G.M.U. as

well as in the super-speciality hospital

(S.G.P.G.I.M.S.). Relevant reports including the

report of medical board was placed before the High

Court reflecting on the medical condition of the

applicant and the treatment being given. The High

Court while passing the impugned order did not refer

to reports of the medical board, which was submitted

pursuant to the order of the High Court and reliance

was placed on the report of Senior Superintendant of

District Jail as well as on the medical opinion of 5 Department of Urology of K.G.M.U. dated 17.01.2020.

The subsequent materials, which were on the record

including the report of medical board had not been

adverted to or considered while passing the impugned

order. The appellant’s medical condition being under

control due to treatment given in aforesaid medical

institutions, there was no occasion to release the

respondent on interim bail. The respondent has been,

for the most of the period in last one year, in the

hospital alone. He submits that under one of the

conditions of interim bail [paragraph 27 (ii)], the

respondent shall ordinarily reside at a place of

residence, which indicates that the respondent is to

ordinarily reside at his residence and not for any

medical emergency. Shri Raju has also referred to

Clinical Summary dated 09.09.2020 of Department of

Urology, K.G. Medical University, Lucknow, which has

been brought on record by the respondent himself as

well as letter dated 05.10.2020 of the Department of

Urology, K.G. Medical University, which indicate that

the respondent has been advised to take tablets and

it is also mentioned that he can take treatment from

any super-speciality hospital in the country. By 6 subsequent letter dated 05.10.2020, he has been asked

to go to S.G.P.G.I.M.S., Lucknow, Neurology

Department for NCV testing. Shri Raju submits that

the State is providing full medical facilities and

treatment to the respondent and the High Court has

erred in granting interim bail on medical ground

without adverting to the medical reports submitted by

the K.G.M.U. and S.G.P.G.I.M.S.

6. Dr. Rajeev Dhawan, learned senior counsel

appearing for the respondent refuting the submission

of the learned ASG for the appellant contends that

even if the offence alleged against the respondent is

a serious offence and respondent may have political

linkage but at present we are not looking at the

nature of offence. When a person is ill and he is

under prison, he requires a humane treatment. An

accused cannot be given a different treatment. The

respondent was being moved from one hospital to

another hospital, which was not by his own choice.

He has referred to the report of K.G.M.U., Clinical

Summary dated 04.06.2020 wherein it has been

mentioned that patient has been referred to 7 S.G.P.G.I.M.S. for further management. Clinical

Summary of K.G.M.U. filed at Pages 71-72 of the

counter affidavit has been referred to. Annexure A-

3 of the Additional Documents filed by the respondent

has been referred to in which K.G.M.U. has observed

that since NCV testing is not available in K.G.M.U.,

the patient is being referred to Neurology Department

of S.G.P.G.I.M.S., for the same. Dr. Dhawan submits

that at present, the respondent is in K.G.M.U. Dr.

Dhawan further submits that the respondent be

permitted to continue at K.G.M.U. and should not be

transferred to jail.

7. We have considered the submissions of the learned

counsel for the parties and have perused the records.

8. In the present appeal, our consideration is

confined only to the interim bail, which has been

granted to the respondent by order dated 03.09.2020.

The Bail Application No. 5743 of 2019 being still

pending in the High Court, our considerations and

observations are only with respect to order granting

8 interim bail and shall have no bearing on the merits

of the bail application, which is pending

consideration before the High Court.

9. From the facts of the case, as noted above, it is

clear that on 03.05.2019, the respondent was admitted

in K.G.M.U. and after more than seven months

discharged on 17.01.2020. The provisional diagnosis

as mentioned in the Clinical Summary is as follows:-

“Provisional Diagnosis : UTI with DM with HTN with Bamboo spine with seronegative Spondylorthropathy.”

10. The respondent was advised taking of tablets,

follow up review in Urology OPD on every Monday and

was discharged on stable condition on 17.01.2020.

Under the orders of the High Court, the medical board

was constituted by Chief Medical Officer. The

medical board report dated 10.06.2020 has been

brought on record, the medical board report dated

10.06.2020 states:-

“To,

Chief Medical Officer, Lucknow, Uttar Pradesh.

9 Respected Sir,

With reference to letter number मम ० चच० अ० / 2o19/6o72-5 dated 08/08/2020 and instructions from Director, Dr. RML Institute of Medical Sciences, Lucknow, UP, we were nominated as members of medical board under the chairmanship of C.M.O. Lucknow. After closely going through the medical records of Mr. Gayatri Prajapati aged 54 years, male from district jail hospital, Lucknow and King George’s Medical University, Lucknow the following observations were made:-

1.The patient is suffering from type-2 diabetes mellitus, benign prostate enlargement, renal dysfunction, low back pain related to seronegative spondylorthropathy.

2.There is no major disparity in the treatment of the patient from both the hospitals and considering the current reports, patient can continue treatment at jail hospital but in view of renal dysfunction and seronagative spondylorthropathy, consultation from nephrologist and orthopedician is advisable.

3.Patient needs control of blood sugar under supervision of endocrinologist.”

11. Before the High Court, an affidavit was also

filed by the State dated 12.06.2020 bringing on

record medical treatment report of S.G.P.G.I.M.S. 10 The affidavit clearly stated that S.G.P.G.I.M.S.,

Lucknow offers unmatchable and unsurpassable medical

expertise in numerous field and patients from far off

places come to S.G.P.G.I.M.S., Lucknow for availing

specialised medical treatment.

12. The High Court by the impugned order dated

03.09.2020 has directed for release of the respondent

on medical grounds, although the order runs in 23

pages but it is the paragraph 27 of the judgment,

which gives the reasoning for grant of interim bail.

Paragraph 27 is as follows:-

“27. Having considered the facts and circumstances of the present case and the applicant's medical condition, which is confirmed by the medical status report, it shows that the applicant is suffering from disease i.e. UTI with Diabetes mellitus with HTN with Bamboo spine with seronegative Spondylorthropathy; proper treatment is not available in K.G.M.U. Hospital, Lucknow and doctors have advised proper treatment from multiple super specialties, at a tertiary care super specialty hospital; further threat to the applicant's health in the prevailing times of Covid-19 pandemic is real and imminent; and in view of the assurances extended on behalf of the applicant that he shall not apprehend or influence the prosecutix and her family members, this Court is persuaded to grant the applicant, Gayatri Prasad Prajapati, interim bail for a period of two 11 months from the date of his release, subject to the following conditions:

XXXXXXXXXXXX

(ii) The applicant shall not leave the country without prior permission of the trial court and shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family; and the complete address of such place shall be furnished to the Jail Superintendent at the time of release;

XXXXXXXXXXXXX”

13. The High Court in its judgment relies on

following:-

(a) Applicant’s medical condition, which is

affirmed by medical status report showing

that applicant is suffering from disease,

i.e., UTI with Diabetes mellitus with HTN

with Bamboo spine with seronegative

Spondylorthropathy;

(b) Proper treatment is not available in

K.G.M.U., Lucknow;

12 (c) Doctors have advised proper treatment from

multiple super specialities, at a tertiary

care super speciality hospital; and

(d) Threat to the applicant’s health in the

prevailing times of COVID-19 pandemic is real

and imminent.

14. The medical condition of the respondent, the

treatment given and various reports including the

report of medical board were on the record. The

S.G.P.G.I.M.S. is a super-speciality hospital where

the respondent has been referred for specified

purposes and report of S.G.P.G.I.M.S. has also been

brought on the record as Annexure P-10 alongwith the

letter dated 10.06.2020 addressed to Chief Medical

Superintendant, S.G.P.G.I.M.S., Lucknow. The medical

report of the respondent dated 10.06.2020 in final

evaluation states:-

“Final Evaluation Glycemia : better controlled Hypertension : well controlled Pulmonary consult: Completed, advised as per notes above Urology work-up on- going.

13 15. The above report of the S.G.P.G.I.M.S., i.e., the

super-speciality hospital, which was on the record as

well as report of the medical board dated 10.06.2020,

which was brought in the notice of the High Court

have neither been considered nor referred to by the

High Court in the impugned order. When the

respondent was being given treatment in the super-

speciality hospital, i.e., S.G.P.G.I.M.S. as

recommended by K.G.M.U., we fail to see as to what

were the shortcomings in the medical treatment

offered to respondent, which could have been the

basis for grant of interim bail on medical ground.

Further, as per condition (ii) mentioned in paragraph

27, the High Court contemplated that respondent shall

ordinarily reside at a place of residence, as

assured, far from the place of residence of the

prosecutrix and her immediate family, thus, the

contemplation was that respondent shall reside at his

residence. There was no satisfaction recorded by the

High Court that treatment offered to respondent was

not adequate and he requires any further treatment by

any particular medical institute for which it is

14 necessary to release the respondent on interim bail

on medical grounds.

16. Dr. Dhawan submits that every person, who is

accused of an offence, even if the offence is a

serious offence, requires a humane treatment by the

prison authorities. There can be no two views with

regard to above. Humane treatment to all including

an accused is requirement of law. Furthermore, a

prisoner, who is suffering from an ailment, has to be

given due treatment and care while in prison.

17. Learned counsel for both the parties have

referred to Clinical Summary dated 09.09.2020 as well

as the letter dated 05.10.2020 of K.G.M.U. referring

the respondent to S.G.P.G.I.M.S. for NCV testing.

18. Even as on date, due medical care is being taken

of the respondent, which is apparent from the

additional documents filed as Annexure A-2 and

Annexure A-3 alongwith the application dated

10.10.2020. The High Court, without considering the

15 entire materials on record, has passed the impugned

order dated 03.09.2020, which is unsustainable.

19. In result, we allow this appeal, set aside the

order dated 03.09.2020. We may again make it clear

that observations made by us in this order are only

for deciding this appeal and shall have no bearing on

the merits of the Bail Application No.5743 of 2019,

which is still pending before the High Court for

consideration.

......................J. ( ASHOK BHUSHAN )

......................J. ( R. SUBHASH REDDY )

......................J. ( M.R. SHAH ) New Delhi, October 15, 2020.

16