Makhan Singh vs State of Punjab

J. S. Sekhon, J.

The case of Makhan Singh petitioner was approved by the Medical Board vide order Annexure P6 dated 5.5.1989. However, the State Government referred the matter to Civil Surgeon, Patiala for clarification, who stated that the diseases from which the petitioner was suffering were treatable after operation. The State Government, therefore, rejected the case of the convict on the ground that diseases were treatable after operation and can be cured by surgery. The petitioner then challenged this order by filing Cr. W. P. No. 430 of 1989 which was disposed of by K. S. Bhalla, J. on 16 .11.1989 with the following observations :

"Annexure R. 11 shows that case of premature release of the convict Makhan Singh was rejected mainly on the ground because disease of the convict was found to be treatable after operation and could be cured by surgery. This could be done if such treatment was thought of by the State and should be taken to be an undertaking on its behalf otherwise, obviously, the convict is bound to remain infirm and incapacitated for want of necessary treatment. Under the circumstances, respondent No. 1 is directed to arrange requisite surgical treatment of convict Makhan Singh within three months from today failing which convict Makhan shall be at liberty to repeat his request for premature release on that ground. This writ petition is disposed of in these terms."

The State having failed to get the petitioner surgically treated within three months of the above referred order of K. S. Bhalla, J., the petitioner has filed the present petition, contending that he should be treated as infirm and incapacitated prisoner as the State Government had failed to make requisite arrangement for surgical operation of prostate glands and cataract of eyes despite specific directions.

In the return filed by the respondent State, it is maintained that the petitioner in pursuance of the orders of this Court in Cr. W. P. No. 430 of 1989 sent the petitioner to Rajindra Hospital, Patiala for treatment where he remained admitted from 8.1.1990 to 16.1.1990. He was again sent for treatment to Rajindra Hospital, Patiala on 21.3.1990 and again in April, 1990 he remained admitted for two days, i.e. 6th and 7th April, 1990 and the petitioner is being given treatment by the Specialists of Rajindra Hospital, Patiala. However, the petitioner refused to subject himself to operation. The report of House Surgeon, Surgery Unit II, Rajindra Hospital was also quoted in para 78 of the return.

The report of the Medical Officer Incharge of Central Jail Hospital Patiala was also called for during the pendency of this petition. The doctor vide his report dated 25.8.1990 has stated that Makhan Singh is suffering from Enlarged Prostate and Immature senile cataract of both eyes and he is being given treatment in the jail hospital as an outdoor patient. The petitioner is also suffering from High Blood Pressure, osteoarthiritis, adentulous. It is also be stated that the petitioner is being given sympromatic and palliative treatment for the abovementioned diseases, but the cataract of eyes and enlarged prostate could only be treated surgically and there no are arrangements for these operations in the jail hospital.

I have heard the learned counsel for the parties. From the report Annexure P6 of the Medical Board as well as from the conduct of the petitioner in not cooperating in subjecting himself to operation for the treatment of the abovereferred ailments, it cannot be said by any stretch of imagination that the petitioner has become infirm or incapacitated due to above referred diseases. It cannot be said that the respondent. State had failed to comply with the order of this Court in C. W. P. No. 430 of 1989 in arranging surgical treatment as the petitioner was got admitted in Rajindra Hospital and he did not cooperate in subjecting himself to surgery.

Consequently, no interference is called for on the writ jurisdiction side, especially when it cannot be said that the State Government had wrongly rejected his mercy petition for premature release on the ground of infirmity or incapacitation.

However, the petitioner, if so advised, would be at liberty to file mercy petition under Article 161 of the Constitution for securing release under the instructions dated 12.12.1985 (Annexure P. 3) of the State Govt, especially when it is not denied that he has undergone more than 9 years, 6 months and 13 days of actual imprisonment and has earned remission of seven years. In case the petitioner files any such mercy petition, the State Government is directed to dispose of the same finally within three months of the receipt thereof as per the observations of the apex Court in Sher Singh v. State of Punjab, 1983(1) RCR(Crl.) 274 (SC) : 1983(3) SCC 304.

The writ petition stands disposed of in these terms.