Dibyawati Krishna vs State Of Assam And 3 Ors.

The Court proceedings have been conducted through remote video conferencing mode due to the prevailing situation in the State due to Covid-19

pandemic.

Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. T. Deori, learned counsel for the petitioner. Also heard Mr. R.K. Bora,

learned Additional Senior Government Advocate for the respondent nos. 1 and 4; and Mr. B. Gogoi, learned Standing Counsel, Health & Family

Welfare Department for the respondent nos. 2 and 3.

The petitioner has approached this Court by this writ petition under Article 226 of the Constitution of India highlighting the grievances in respect of

the husband of the petitioner who after arrest in connection with C.I.D. Police Station Case no. 21/2020, was remanded to custody in the month of

October, 2020. According to the petitioner, her husband was initially in Central Jail, Guwahati. After being so remanded to custody, his health condition

deteriorated. The resident doctor of the Central Jail gave him preliminary treatment and when his condition did not improve, he was referred to the

Gauhati Medical College and Hospital (GMCH). On 02.01.2021, the husband of the petitioner was admitted in the GMCH and since then, he has been

undergoing medical treatment in the said hospital.

It is submitted by Mr. Choudhury that after investigation of the case, a charge sheet under Section 173, CrPC has already been submitted and

accordingly, a case being Special Case no. 06/2021, has been registered. The case is presently pending before the Court of Special Judge, Assam.

The husband of the petitioner is, thus, an undertrial prisoner. In the order dated 28.06.2021 passed in Special Case no. 06/2021, the learned Special

Judge had directed the Superintendent of GMCH to submit latest health condition of the accused on or before the next date of listing, 12.07.2021. He

has further submitted that because of the various ailments, the husband of the petitioner has to be treated in the hospital and it was due to his serious

health condition, it was decided by the GMCH authorities to continue the medical treatment by keeping him in a paying cabin. A controversy has

arisen during the course of inquiry/trial before the trial court as to who would bear the expenses of paying cabin wherefrom the treatment of the

husband of the petitioner had been continuing. Mr. Choudhury has submitted that immediately after passing of the said order dated 28.06.2021 by the

learned Special Judge, the husband of the petitioner has been shifted the GMCH authorities from paying cabin to general ward in an unjust manner on

29.06.2021 despite his serious health condition. In order to substantiate his submission, he has referred to a report dated 29.06.2021 which has

reported that there was presence of occult blood in the stool of the undertrial prisoner. Such action of shifting of the husband of the petitioner from the

paying cabin to general ward, according to Mr. Choudhury, is clearly unjustified as such exposure is likely to result in complication in the health

condition of the husband of the petitioner.

A copy of the order dated 28.06.2021 passed by the Special Judge in Special Case no. 06/2021 has been annexed with this writ petition as

Annexure-E. From a perusal of the same, it is found that the learned Special Court has been considering the entire matter including the issue of giving

proper medical treatment to the husband of the petitioner. It is not in dispute that an arrested accused or an undertrial prisoner is entitled to receive

proper medical treatment during custody. As the learned Special Court is already in seisin of the matter, this Court is of the considered view that it

would be appropriate for the learned Special Court to deal with the issue regarding the shifting of the husband of the petitioner from paying cabin to

general ward on 29.06.2021, by calling for reports from the Superintendent of GMCH and to find out as regards the necessity of keeping the husband

of the petitioner in a paying cabin or in general ward to render proper medical treatment by keeping in mind his health condition, in order to avoid two-

pronged approach on the same subject matter.

In the above view of the matter, this Court does not like to make any observation as regards the aforesaid issues projected on behalf of the

petitioner in this writ petition. Accordingly, this writ petition is disposed of granting the liberty to the petitioner to approach the learned Special Court on

08.07.2021 by making an application highlighting the issues regarding the health condition of the husband of the petitioner and the necessity of keeping

him in a paying cabin along with all the supporting materials.

Mr. Gogoi, learned Standing Counsel, Health & Family Welfare Department has submitted that he will intimate the Superintendent of GMCH as

regards the issues raised in this petition, with the further instruction to the said authority to place the relevant materials regarding the health condition

of the undertrial prisoner and the reason for shifting the undertrial prisoner from paying cabin to general ward on 29.06.2021, to the learned Special

Public Prosecutor on or before 08.07.2021. The learned Special Public Prosecutor shall, in turn, place all those instructions as regards health condition

including the medical reports of the husband of the petitioner, if any, and the reason as to why the husband of the petitioner had beenÂ

shifted from paying cabin to general ward on 29.06.2021 before the learned Special Judge on 08.07.2021.

The learned Special Court, on receipt of such an application and the instructions placed, indicated above, shall decide the matter on the basis of the

materials placed before him by the parties. It is expected that the same will be considered with utmost expedition.

This Court further observes that till 08.07.2021, no decision shall be made by the GMCH authorities to shift the husband of the petitioner to Central

Jail, Guwahati.

With the observations made and the direction given above, the writ petition stands disposed of.