Suo Motu vs The State of Gujarat

Akshay H. Mehta, J.

Rule. Mr. RC Kodekar, Ld. APP waives service of rule.

This is a suo-motu proceeding taken up by this Court in view of certain shocking facts that had come to its notice from the newspaper report. Kantilal Shivlal Patel [Amrutiya] has become the subject matter of the proceedings or the focus of our attention on account of the said newspaper report since it revealed that though he has been convicted for a serious offence like murder and conspiracy u/s 302 and 120B of the Indian Penal Code [for short ''IPC''] and he has been sentenced to suffer imprisonment for life, he had been enjoying A Class comforts in the Civil Hospital under a false pretext of having a heart ailment.

The said convict prisoner was prosecuted along with several other accused for having committed murder of one Prakash Raveshiya on account of political rivalry. His trial took place in the Court of learned Judge, 2nd Fast Track Court, Gondal in Sessions Case No. 34 of 2000, who by judgment dated 23rd August, 2004 found him guilty of committing aforesaid offences and passed the sentence stated above. The convict prisoner thereafter preferred Criminal Appeal No. 1544 of 2004 before this Court to challenge the judgment and order of conviction and sentence passed against him. His appeal has been admitted to final hearing by this Court vide order dated 28th September, 2004. He also preferred, along with the appeal, application u/s 389 of the Code of Criminal Procedure [for short ''Cr.P.C.''] praying for suspension of sentence and to release him on bail pending final disposal of the appeal. On the said application, by order dated 28th September, 2004, this Court issued notice to the otherside making it returnable on 10th October, 2004. The application was extensively argued by Mr. SK Jain, Senior Advocate appearing with Mr. SV Raju for the convict prisoner. By our C A V order dated 13th October, 2004 the said application was rejected by assigning detailed reasons, dealing with all the submissions that had been advanced by the learned Senior Advocate. It is stated at the bar that his appeal before the Apex Court challenging the said order has also been rejected.

To our utter surprise a report appeared in local Gujarati daily named ''Divya Bhaskar'' dated 25th November, 2004, wherein it was reported that several persons who are either facing trial or who have been convicted after trial, by exploiting their influential position, get themselves admitted in the Civil Hospital under the guise of having some serious ailment and they thereafter enjoy A Class facilities in the hospital. They not only receive the comforts in the VVIP rooms, but they also do their personal work and entertain guests and visitors. They are permitted to have food from outside which is usually being brought from the restaurant. In the VVIP rooms they are provided with air conditioner, refrigerator, mobile phone, television, etc. But for their influential position, power and money they would not be able to enjoy such facilities. In the said report particular reference was made of the present convict prisoner, who is an elected Member of the State Legislative Assembly. It is stated that he had been enjoying all these facilities in special room no. G-6 in the Civil Hospital. It is stated that upon admission to the Civil Hospital he had demanded special room in a special ward and to pressurize the hospital authorities he had behaved in a unruly manner till late night on 5th November, 2004 on the ground that the food that was provided to the prisoners was insect infested. He was thereafter shifted to the aforesaid room. The report also stated that the convict prisoner was not only provided with A Class facilities such as A.C., T.V., refrigerator, mobile phone, etc., but he was even permitted to meet the visitors. It was around Diwali time when he got himself hospitalized and on account of the Diwali festival the number of visitors was so large that they had to stand in a queue to meet him. Though the police watch was maintained outside his room, the police guards were not taking any objection to people meeting him. It was further reported that the convict prisoner was permitted to have food of his choice from outside and even the police guards were served with the said food. In view of such disturbing report, this Court decided to consider the entire issue with all seriousness and by order dated 29th November, 2004 initiated suo-motu proceedings against the convict prisoner and also the concerned Jail as well as the Government and the Hospital Authorities. By the said order, following directions were issued :-

[1] The Deputy Commissioner of Police, Zone-IV, City of Ahmedabad, is directed to seize the medical record between the period from the date of his admission till today in the Civil Hospital, Ahmedabad, pertaining to the applicant forthwith, i.e. today itself, 29th Nov. 2004.

[2] The applicant should be examined by a team of Cardiologists of the Civil Hospital, Ahmedabad and they may furnish the latest health report of the applicant to this Court on or before 2nd Dece. 2004, through the Civil Surgeon.

[3] If in the opinion of the aforesaid Doctors, the applicant is free of the ailment, the Civil Surgeon may discharge him from the Hospital forthwith and may forward him to the Central Prison at Ahmedabad.

[4] The Jail Superintendent, Ahmedabad Central Prison, Ahmedabad; the Secretary, Home Department, Govt. of Gujarat, Gandhinagar and the Civil Surgeon, Civil Hospital, Ahmedabad to file their respective affidavits before this Court as to how the applicant is permitted to stay in the Civil Hospital, Ahmedabad and enjoy all the facilities and amenities as stated above. The affidavits to be filed on or before 2nd Dece. 2004.

Learned APP to communicate this order to (1) Deputy Commissioner of Police, Zone -IV, City of Ahmedabad; (2) The Jail Superintendent, Ahmedabad Central Prison, Ahmedabad; (3) The Secretary, Home Department, Govt. of Gujarat, Gandhinagar; and (4) The Civil surgeon, Civil Hospital, Ahmedabad, forthwith.

3.1. By virtue of this order, the concerned Police Officer i.e. Deputy Commissioner of Police, Zone IV, City of Ahmedabad visited the hospital and seized the medical record relating to the convict prisoner for the period between the date of admission and the date of the order. It appears that in view of order dated 29th November, 2004 the convict prisoner was discharged from the hospital next day and we are told that several other prisoners also who were enjoying such facilities had been despatched back to the prison.

Pursuant to our directions contained in order dated 29th November, 2004 Mr. LV Kharadi, Jail Superintendent, Sabarmati Central Prison and Dr. DS Vyas, Incharge Resident Medical Officer, Civil Hospital, Ahmedabad and Mr. SK Gadhvi, Deputy Commissioner of Police, Zone-IV, Ahmedabad City filed their affidavits, which were taken on record by our order dated 2nd December, 2004. Though we had directed the concerned Civil Surgeon of the Civil Hospital, Ahmedabad to file the affidavit, he did not do so and it was reported to us by Mr. RC Kodekar, Ld. APP that he had proceeded on leave. The Home Secretary also did not file the affidavit on the ground that there was paucity of time. Hence, he was given one more chance by the Court to file affidavit by adjourning the hearing to 8th December, 2004. On 8th December, 2004 Mr. SN Shelat, Ld. Advocate General appeared with Mr. RC Kodekar for the State and he apprised the Court that the State Government had taken the entire issue very seriously and had contemplated to appoint a fact finding inquiry committee. In view of the same, the hearing was adjourned and it was thereafter fixed on 13th December, 2004. On that day, Mr. Shelat informed the Court that a one man fact finding Inquiry Committee presided by Mr. GC Murmu, Secretary, Law and Order was appointed and to assist him, a panel of Doctors comprising -

Dr. Sameer Dani Consultant Cardiologist SAL Hospital, Ahmedabad

Dr. Nagesh Bhandari Consultant, Spinal Surgery, v. Hospital, Ahmedabad

Dr. R K Patel Director, U.N. Mehta Institute of Cardiology & Research Centre was also appointed.

4.1. In view of the constitution of the fact finding Committee certain directions were given to the said Committee, which are as under :-

Whether the ailments disclosed in the case papers of the accused Kantilal Shivlal Patel (Amrutiya) required him to be admitted to the Civil Hospital?

If yes, whether the ailment was such so as to give him treatment by the Civil Hospital authorities in special room ?

Whether there has been violation of the Prisoners'' Rules when the prisoner was in special room by permitting him to meet outsiders and allowing him to have meals from outside ?

Whether a prisoner who is admitted in the Civil Hospital for treatment either in the prisoners'' ward or in special room, is permitted to use mobile phone and to have facilities and amenities like Television, refrigerator, air conditioner, etc. ?

Whether the facility of special room is being offered considering the nature of ailment that has been suffered by the prisoner or in accordance with his status in the life and his financial condition ?

Suggestions as regards to the procedures to be adopted in such cases.

The Committee was also directed to inquire and give its report on the aforesaid issues together with the recommendations for future, preferably within six weeks from the date of the order. The next hearing was thereafter adjourned to 27th January, 2005. On that day, it was told to us that the Inquiry was not complete because statements of the concerned persons were still required to be recorded and, therefore, the Learned Advocate General requested for further four weeks'' time to submit the report. The same was duly granted and the next hearing was adjourned to 28th February, 2005. On that day, Mr. Shelat placed on record the report of the Committee before this Court.

We have carefully gone through the report submitted by the Committee. It has been prepared in three parts, namely (i) factual position of the present pattern regarding requirement of treatment in the Civil Hospital, (ii) the facts regarding alleged comforts provided at the hospital and misuse of facility, etc. and (iii) suggestions for the future. It also appears from the report that during the inquiry the Committee has interrogated and recorded statements of various authorities connected with the Civil Hospital as well as the security guards posted at the entrance of the room provided to the convict prisoner and other persons who were fairly acquainted with the facts of the case. The report of the Committee contains the findings arrived at by the Committee after due inquiry into the allegations and also summary of such findings. Naturally the most of the findings relate to the terms of reference pertaining to whether Mr. Amrutiya was extended undue favour and facilities under the pretext that he had serious cardiac ailment, the backache and also problem with urinary track, for which he was examined by the appropriate doctors. The findings relating to state of health of Mr. Amrutiya given by the Committee are extensively based on the statements of concerned Medical Officers as well as the medical record produced by them in support of their say. However, it is to be noted here that by virtue of our first order, the concerned police had visited the hospital and had seized the entire original medical record concerning Mr. Amrutiya and that was produced before this Court which since then is lying in the custody of this Court. It also transpires from the report that the said record was not available to the Committee at the time of inquiry. Though it was made clear to the learned Addl. Public Prosecutor attached to our Court that if so wished the Committee can intimate the Court and the record will be made available to it. No such request was ever made to the Court and we now appreciate the handicap suffered by the Committee without the availability of the important record.

5.1. We may make it clear that initially our focus was restricted on the illegalities and irregularities that were alleged to have been committed in the case of Mr. Amrutiya, but now it has extended slightly beyond it. However, since the entire issue arose on account of the publication of the news regarding the undue favour done and luxurious treatment afforded to the convict prisoner Mr. Amrutiya, we have even carefully gone through the findings relating to his illness, the medical treatment given to him and the facilities which were extended to him by way of absolute necessity. As stated above, the Committee summarized these findings which can be verbatim produced as under :-

The panel of doctors assisting the Inquiry has examined the case papers of the accused Kantilal Shivlal Patel [Amrutiya]. The nature of ailments and treatment disclosed in the case papers, medical facility available in the Jail and the directions made by honorable Courts in some cases on medical treatment and admission of under trials and convict prisoner to the Civil Hospital justify requirement of transfer of the prisoner Shri Kantilal Shivlal Patel [Amrutiya] to the Civil Hospital.

The health conditions of the prisoner ascertained from the concerned doctors who provided treatment, medical case papers, and medical history of the family members of the prisoner suggest that the ailment was such that it was necessary to give him treatment by the Civil Hospital authorities in separate room, may not be in a special room.

It appears from the statements recorded from the police on security duty and oral inquiry made during site visit that no visitor has been allowed to meet the prisoner Kantilal Shivlal Patel [Amrutiya], though there has been instances of people inquiring general well being of the prisoner from the door of the alleged special room without entering the room. The superintendent of the Jail has not given any permission to any visitor also. As such there has been no violation of the Prisoner''s Rules when the prisoner was in special room by permitting him to meet outsiders. The entry system in the Civil Hospital is not foolproof and anybody can get in to the Hospital and go to the special ward also. There is a system of issuing two passes for the relatives of the patient and visitors are generally allowed between 1.0 PM to 3.00 PM. General visitors can get in to any location in the Hospital. Some of the people coming to this wing seem to have enquired about the health, etc. of the prisoner without entering the room. To this extent, there is inadequacy of arrangements in the Civil Hospital. The Superintendent of the Civil Hospital and the other Medical staff are not aware of the provisions of restrictions meant for prisoners. Anybody visiting Civil Hospital can go to the special ward and inquire about the patient and the control is limited to the entry pass, which is supposed to be checked at the general entry gate into the building. The prisoners should be kept away from such area where crowding by relatives of other patients can also be prevented. Besides the Security personnel on duty have not been briefed specifically to deal with visitors taking chance and inquire about the health of the prisoner even from the door of the room especially when competent authority has not given any permission to the visitors. As a result, the Security personnel on duty did not prevent such visitors enquiring about the health of the prisoner Shri Amrutiya from the passage/from the door of the room.

Similarly, for provisions of food to the patient is different from a patient in general ward/jail ward and the special ward where food is supplied by the Hospital. It is the responsibility of the patient to manage his/her own food in the special ward. As such the prisoner had meals from the Civil Hospital till he was shifted to the special room. He was required to take food, fruits and milk, etc. from outside while he was hospitalized in the special room in the Civil Hospital.

Though the provisions of Prison Acts expressly do not spell out the provision of food to the prisoner during treatment in the Civil Hospital, the Hospital authorities should have informed the jail authorities as food from any other source other than jail or Hospital need specific permission, even in the case where specific diet may be prescribed for a patient.

A prisoner, who is admitted in the Civil Hospital for treatment either in the prisoner''s ward or in special room, is not permitted to use mobile phone and to have facilities and amenities like Television, Refrigerator and Air Conditioner, etc. The Bombay Jail Manual contains detailed provision for treatment, duties of medical officers, security personnel and the provisions for communication and meeting of visitors. Apart from meeting relatives, etc. within stipulated time period and provisions of receiving any number of postal communications by the prisoner, no provision has been provided for telephonic communication either by landline or by mobile phone under the provisions of Gujarat (Facilities of Interviews, communication, etc.) to Prisoners Rules, 1973. (Home department Notification of 15th October, 1973). In the present case, alleged use of mobile phone by the prisoner is not observed. The statements taken from some of the policemen on duty during "Diwali" period have stated that some people coming to see him were having mobile phones. However, they were not allowed to enter the room.

The facility of separate/special room has been offered considering the nature of ailment that has been suffered by the prisoner and not in accordance with his status in the life and his financial condition. The special room does not have Television or Frig. However, the room has the benefit of centralized air-conditioning.

Suggestions in regard to the procedures to be adopted in such cases has been made concerning the provision of adequate facilities in the jail itself, requirement of team of doctors to opine before shifting a prisoner to Civil Hospital or any other Hospital, following of set procedures by Doctors and Jail Authorities, special provisions for relaxation of norms for visitors during such treatment and emergency communication under the supervision and presence of jail authorities/Medical officer. Also the component of training the Medical officers/staff and the Police personnel on security duty have been considered.

These findings clearly show that they are based on the versions put forth by the persons who themselves are likely to be in difficulties. We may hastily say that we may not be misunderstood of saying that we doubt the bonafides of the concerned Medical Officers. The versions put forth by the Medical Officers who were connected with the treatment of Mr. Amrutiya show that they have found the several ailments suffered by him to be genuine one. Their version is adequately tested by the Committee comprising experts on the subject. We are nonmedical persons and it is not within our sphere to raise doubts regarding their version. Nonetheless we are not able to ascertain from the report on what basis the information has been provided to the committee by the concerned Medical Officers since the entire record remained in the custody of this Court. It is not brought to our notice in any manner whatsoever that the Civil Hospital maintains medical record of each patient either in duplicate or triplicate. Further the finding is that Mr. Amrutiya was given a separate room since it was medically necessary to do so. However, it did not contain Refrigerator and T.V. May be that the separate room did not have these facilities but T.V. and Refrigerator in portable sizes are easily available, and possibility of relatives making them available to convict prisoner cannot be ruled out. Needless to say that there would be number of other patients who would be having similar ailments but who may not be provided with such facilities, may be because they are unable to afford it. However, the questions that remain to be considered are that Mr. Amrutiya is a convict prisoner who is sentenced to suffer imprisonment for life by a competent Court after a legal trial. If the other convict prisoners who are similarly situated but who cannot afford or manage to have such facilities of separate, special or deluxe rooms, can be treated at the Civil Hospital for their ailments, why influential and affluent persons like Mr. Amrutiya should not be treated on par with them? He is like any other convict prisoner who has to be looked upon slightly differently than the general public. We are very sure that because of the political influence and the power wielded by Mr. Amrutiya he must have managed to have the comforts of A.C., Frig, T.V., etc. When Mr. Amrutiya was genuinely ill and was having several ailments and he was not still free from all the ailments why upon receiving the summons of this Court and the police visiting the hospital, on the very next day, he was discharged from the hospital? Further from the report it also transpires that according to Dr. MM Prabhakar, Professor of Orthopedic & Head of the Unit, Mr. Amrutiya continued to have backache till 29th November, 2004 and when he was discharged on 30th November, 2004 he did not have the backache. It is a very strange coincident that our order is dated 29th November, 2004 and the police visited the hospital on the same day and the backache disappeared on the very next day i.e. on 30th. Further why several other prisoner patients were sent back to the jail immediately? Why the Civil Surgeon proceeded on leave almost instantaneously? Apart from the record that was seized by the police was there any other record available with concerned Medical Officers of the Civil Hospital on the basis of which they furnished the information to the committee experts? It may be noted here that the Committee has in its report stated as under :-

"The police, as per the direction of the Hon''ble High Court have seized the medical records etc. The DCP in Zone-IV, Ahmedabad Police Commissionerate was requested to allow then fact-finding committee to see the same. However, as per written reply dated 14th February, 2005, by the Police Inspector of Shahibaug Police Station, the records have been submitted to the Registrar of the High Court. Hence these records could not be examined."

Further why direction no. 2 contained in order dated 29th November, 2004 was not carried out? These are some of the questions that have remained unanswered.

5.2. So far the convict prisoner having visitors in the room is concerned, the Committee has referred to the statements recorded of the Security Personnel posted outside the room by the jail authorities. Though they have tried to save their skin by saying that the visitors came there and they stood outside the room at the door and inquired about his health without entering it and thereafter they left the place. This version of the Security Guards cannot be swallowed at all. It is obviously given with a view to cover their lapses. It is difficult to imagine that such influential person would observe the jail rules and allow the security persons to prevent the visitors from entering the room. The news item referred to above alleged that the flow of visitors was to such an extent that even the staff of the hospital was amazed. We hardly find any exaggeration in such report. It is absolutely probable that the flow of visitors could be to the extent it was described in the newspaper since it was days of Diwali festival. The political aspirants, to assume some position in the party would certainly seize such opportunity to express their sympathy with him and to show that he has their full support. It would not be within the capacity of these security guards to withstand such pressure. Naturally they would succumb to it. At the same time, in return the convict prisoner and his relatives might have showered some petty favours on these guards like providing them with good food, snacks, and even some cash amount, etc. This is a common feature of such episodes. But compared to everything else, these guards are very small people and though their lapses cannot be overlooked they can certainly be pardoned once.

5.3. So far use of cell-phone is concerned, it is also not possible to believe that he was not permitted to use it. Judicial notice can be taken of the fact that time and again it is brought to the notice of all concerned that the influential and materially well off convict prisoners in the prison itself are permitted to keep and use the cell-phones. Mr. Amrutiya stood on the better footing since though prisoner, he was not actually in the prison nor in the prisoners'' ward. Would he miss such opportunity of using the cell-phone, may be not of his own but of his relatives. It would be rather unnatural on our part to accept the version of the concerned authority and security personnel that he was not permitted to use the cell-phone.

In the foregoing paragraphs we have expressed our opinion on the issue whether Mr. Amrutiya was shown undue favour by the hospital authorities and also by the guards on duty. Now it is for the State Government to decide whether it would like to take appropriate steps against the defaulters. Speaking for ourselves we do not recommend any action to be taken against the concerned officers of the Civil Hospital as well as the guards on duty. However, it is entirely the privilege of the State Government and it can exercise it in the manner it likes.

This issue has not to be viewed in a microscopic manner and the purpose of initiating suo-motu proceedings is not only restricted to fault finding exercise. Its scope is slightly wider than the fact finding inquiry only. We are happy to say that the Committee appointed by the State Government has fully comprehended the idea behind initiating suo-motu proceedings and it has very efficiently dealt with various aspects relating to the medical facilities to be made available to convict prisoners and at the same time to see that no disadvantage is taken or misuse is made by any convict prisoner or even for that matter the under-trial prisoner on the strength of his social status in life, money, power or authority. The Committee has taken into consideration various provisions of prison legislations relating to the health and the medical facilities to be provided to the prisoners and has made certain important recommendations for the future. We have carefully perused the same. These recommendations can certainly prove to be extremely useful from the point of view of the medical treatment to be made available to the prisoners and at the same time to prevent the abuse of such facilities and also to maintain adequate security.

7.1. Now with a view to deal with these aspects of the case, we may first of all turn our attention to certain relevant provisions of the prison legislations.

7.2. The Prisons Act, 1894 provides for appointment of officers of prisons including Medical Officer. Section 6 reads as under :-

"6. Officers of prisons.- For every prison there shall be a Superintendent, a Medical Officer (who may also be the Superintendent), a Medical Subordinate, a Jailer and such other officers as the State Government thinks necessary :

Provided that the [State Government of Bombay] may declare by order in writing that in any prison specified in the order the office of Jailer shall be held by the person appointed to the Superintendent."

Chapter III of the Prisons Act prescribes duties of Officers. Sections 13 and 14 thereof read as under:-

"13. Duties of Medical Officer.- Subject to the control of the Superintendent, the Medical Officer shall have charge of the sanitary administration of the prison, and shall perform such duties as may be prescribed by rules made by the State Government u/s 59.

Medical Officer to report in certain cases.- Whenever the Medical Officer has reason to believe that the mind of a prisoner is, or is likely to be, injuriously affected by the discipline or treatment to which he is subjected, the Medical Officer shall report the case in writing to the Superintendent, together with such observations as he may think proper.

This report, with the orders of the Superintendent thereon, shall forthwith be sent to the Inspector General for information."

Chapter IV of the said Act deals with admission, removal and discharge of prisoners. Sub-sections (2) and (3) of section 24 and section 26 are relevant for our purpose. They are as under :-

"24. Prisoners to be examined on admission.-

(1) xxx xxx xxx (2) Every criminal prisoner shall also, as soon as possible after admission, be examined under the general or special orders of the Medical Officer, who shall enter or cause to be entered in a book, to be kept by the Jailer, a record of the state of the prisoner''s health, and of any wounds or marks on his person, the class of labour he is fit for if sentenced to rigorous imprisonment, and any observations which the Medical Officer thinks fit to add.

(3) In the case of female prisoners the search and examination shall be carried out by the matron under the general or special orders of the Medical Officer.

Removal and discharge of prisoners.- (1) All prisoners, previously to being removed to any other prison, shall be examined by the Medical Officer.

(2) No prisoner shall be removed from one prison to another unless the Medical Officer certifies that the prisoner is free from any illness rendering him unfit for removal.

(3) No prisoner shall be discharged against his will from prison, if labouring under any acute or dangerous distemper, nor until, in the opinion of the Medical Officer, such discharge is safe."

Chapter VIII of the said Act deals with health of prisoners. Sections 37, 38 and 39 read as under :-

"37. Sick prisoners.- (1) The names of prisoners desiring to see the Medical Subordinate or appearing out of health in mind or body shall, without delay, be reported by the officer in immediate charge of such prisoners to the Jailer.

(2) The Jailer shall, without delay, call the attention of the Medical Subordinate to any prisoners desiring to see him, or who is ill, or whose state of mind or body appears to require attention, and shall carry into effect all written directions given by the Medical Officer or Medical Subordinate respecting alterations of the discipline or treatment of any such prisoner.

Report of directions of Medical Officer. All directions given by the Medical Officer or Medical Subordinate in relation to any prisoner, with the exception of orders for the supply of medicines or directions relating to such matters as are carried into effect by the Medical Officer himself or under his superintendence, shall be entered day by day in the prisoner''s history-ticket or in such other record as the State Government may by rule direct, and the Jailer shall make an entry in its proper place stating in respect of each direction the fact of its having been or not having been complied with, accompanied by such observations, if any, as the Jailer thinks fit to make, and the date of the entry.

Hospital - In every prison a hospital or proper place for the reception of sick prisoners shall be provided."

7.3. The aforesaid provisions clearly show that adequate arrangement has been made in the legislation for the appointment of Medical Officers to prescribe their duties and to tackle problem of health of the prisoners. It also prescribes establishment of hospital in the prison for the reception of sick prisoners. These are the basic provisions which are, in the opinion of the legislature, could be sufficient to deal with the problem of the health, mental as well as physical, of the prisoners. The provisions also show how important a Medical Officer is in the Prison setup and how he is burdened with various kinds of responsibilities.

7.4. Keeping in view and in consonance with the same, in the jail manuals certain provisions are incorporated. Chapter 20 of the Bombay Jail Manual [Edition of 1955] prescribed by the erstwhile Government of Bombay contains provisions with regard to jail hospitals and the functions of the hospital staff. Para. 547 deals with establishment of jail hospital in every Central, District and Special prison. It reads as under :-

"547. In every Central, District and Special Prison, there shall be a Jail Hospital under the management of the Medical Officer (i.e. Resident Medical Officer or the Civil Surgeon appointed by Government to hold the charge of Medical Officer)."

Other provisions which are relevant for the purpose of this proceedings are as under :-

"548. The Medical Officer is subordinate to the Superintendent of the Prison except as regards the medical treatment of the sick. He shall have a free hand in the medical treatment of the inmates of the Hospital whether sick or convalescent or under observation, subject to Jail discipline, and he is under the general control of the Inspector-General of Prisons."

"550. The duties of a Medical Officer shall embrace every matter affecting the health, physical and mental, of the prisoners and the general hygiene of the prison, especially as regards diet, clothing, work and punishments, as well as the treatment of the sick. He should inspect all rations consumed in the prison."

"561. He shall see that the hospital books, registers and returns are properly kept and shall daily initial such as are necessary. The Registers requiring his attention are :-

No. 32, Medical Officer''s Journal " 33, Health Register " 34, Register of sick (with index) " 35, Convalescent Register (with index) " 36, Register of extra diet given to prisoners. " 37, Requisition Book. Register of Surgical Instruments and Medical Books. Register of Hospital Clothing. Expense book of drugs.

He shall keep a record in the form supplied (form C.M. 3) of all cases admitted to hospital."

"565. The Medical Officer may permit any prisoner to purchase from his private cash, any items of food, patient medicines or articles of clothing, if he considers that these are essential for the maintenance of the health of the prisoner. All such orders shall be entered in Register No. 32.

Orders for extra diet, whether for prisoners in or out of hospital, and all other articles required for the sick shall be signed by him. He shall satisfy himself that his orders in this respect are carried out without any delay and that the wants of newly admitted sick prisoners are at once attended to. The diet of prisoner in hospital will be entirely under the Medical Officer''s control and he may also order any change of diet which he may consider necessary for any particular prisoner. All extras given to prisoners whether in or out of hospital and all variations of the ordinary diet ordered on medical grounds shall be reported in detail to the Inspector-General through the Superintendent in the prescribed form every month. He should personally see that such diet is issued only to bonafide patient and restrict expenditure on this account to the minimum. The diet of the entire prison can only be changed by the Superintendent on the recommendation of the Medical Officer during the prevalence of epidemic disease, or in case of emergency. Any such action shall be at once reported to the Inspector-General."

"583. He shall at once visit any prisoner complaining of sickness and afford him the necessary treatment. As a rule he will admit such cases at once into hospital, but, if he thinks this is unnecessary, he will bring them to the notice of the Medical Officer at his next visit."

"614. Urgent cases requiring immediate surgical or other treatment which cannot adequately be given in a Jail hospital should be transferred at once to the local Civil Hospital and report made to the Inspector-General of Prisons. Cases where delay is not likely to do any harm should be transferred only with the previous sanction of the Inspector-General.

Prisoners, who are desirous of having extra medical facilities in respect of diet or clothing in addition to those provided for in the Jail hospitals, may be allowed to supplement them at their own cost, provided the Medical Officer considers it necessary in the interest of the health of the prisoner."

7.5. The aforesaid provisions again show the importance of Medical Officer and the different duties he has to perform. They also provide for establishment of jail hospitals in every central, district or special prison and there has to be one Resident Medical Officer or Civil Surgeon appointed by the Government. In view of the same, the Government should see that a well qualified person is appointed as the Medical Officer. The Government should prescribe such norms and salary for the post whereby a person with good experience and having done a post graduation course is available for appointment on that post. Person qualified with only MBBS degree may not be given preference. Further, so far establishment of hospitals are concerned, section 39 of the Prisons Act and Para. 547 of Bombay Jail Manual clearly prescribe creating or establishing a jail hospital. To us it appears that this provision is required to be implemented in its true spirit. Our experience shows that even for simple or routine ailments prisoners approach this Court for temporary bail on the ground of obtaining proper treatment from the doctor of their choice since treatment given at the jail hospital had not cured them of the ailments they were suffering from. May be that sometimes it can be a pretext to secure release for temporary period but the fact remains that such ground is being advanced time and again for availing temporary bail. Further even for common minor ailments the prisoners are taken to the Civil Hospital or for that matter even for routine check-up of the prisoners having heart disease or similar such ailment or for investigation into the complaint of stomach ache, backache, etc. the prisoners are taken to the Civil Hospital. When the question of the health of a prisoner arises, this Court by and large accedes to the request of the prisoners and does not prefer to take any chance with their health. Many a times such approach of this Court towards the health of the prisoners is being exploited by them. Frequently the prisoners simply enjoy their temporary bail, do not avail any treatment and as if that is not enough they again approach the Court seeking extension of the temporary bail by submitting various kinds of excuses. These prisoners avail the services of specialised lawyers for this purpose, who file application for temporary bail on the ground of ill-health for which more than often fake medical certificates are also produced. This, however, reflects that the jail hospitals are only for name sake and they are not of much use to the ailing prisoners. Moreover, the Prison legislations, as can be seen, are very old and the provisions therein are made keeping in view the conditions prevailing then. It is a matter of common knowledge that number of prisoners has increased with enormous growth of the population, the pattern of diseases has also undergone change and new facilities have been created for the treatment. The diseases which were not common, they have become common nowadays. The means to diagnise the diseases and the treatment to tackle them have undergone revolutionary changes. In view of the same, the treatment and facilities presently provided at the jail hospitals are hopelessly inadequate. Hence, there is utmost necessity to have absolutely modern hospital establishment for the prisoners.

7.6. The aforestated are some of the provisions which can give adequate guideline for making recommendations to the State authority for establishment of the jail/prison hospitals to have proper facilities including the facility to have modern equipments to tackle even the serious ailments relating to vital organs of the body like heart, lungs, kidney, liver, etc. and various common and uncommon diseases and to have proper and efficient, fully qualified medical staff for that purpose. Only in the cases of extraordinary emergency or the treatment requiring use of ultra modern highly expensive equipments the prisoners may be transferred to Civil or super speciality hospital; otherwise all the medical treatment can be made available at the jail hospital. Though the Committee has rightly recommended that atleast there should be one such full-fledged hospital equipped with modern facilities and efficient medical staff including specialist doctors at a place like Ahmedabad, we are of the opinion that such establishment should be created in major centres like Vadodara, Surat, Rajkot, Jamnagar and Bhuj, so that if the prisoners are in a position to undertake the journey and who are from the places which are not far away from the major places stated here, they can be brought there and treated under the supervision of the jail authorities. For the removal of the prisoners the Home Department of the Government of Gujarat has issued Gujarat [Removal of Prisoners] Order, 1976 in exercise of the powers conferred by sub-section (1) of section 29 of the Prisoners Act, 1900. Section 3 provides for circumstances for removal. It states that prisoners may be removed from one prison to another prison in the State for the following reasons, that is to say -

(a) xxx xxx xxx (b) xxx xxx xxx (c) medical grounds,

Section 4 provides for Superintendent to remove prisoners only with the prior sanction of Inspector General of Prison, or as the case may be, the Deputy Inspector General of Prisons. Sub-clause (4) of Clause (b) of sub-section (1) of section 4 prescribes removal of prisoners on urgent medical grounds. Other relevant provisions are sections 6, 7, 18, 22 and 26. They are reproduced as under :-

"6. Prisoners in a bad state of health not to be transferred.- Prisoners in a bad state of health shall not be transferred from one prison to another except with the sanction of the Inspector General.

Removal on medical grounds.- Where the Medical Officer is of the opinion that the removal of a sick prisoner to another prison is absolutely necessary to save his life and if such removal is likely to lead to his recovery, he shall submit a brief statement of the case to the Superintendent and point out the prison to which he considers a transfer desirable. The Superintendent shall submit the recommendation to the Deputy Inspector General for his orders."

Procedure before removal.-

(1) All prisoners prior to removal shall be carefully searched in the presence of the Officer-in-charge of the escort, who shall then take over the charge of prisoners with a list of property. The Officer-in-charge of the escort shall then be entirely responsible for the safe custody of prisoners until they are made over to the Senior Jailor of the receiving prison who will grant him a receipt for the same.

(2) The Officer-in-charge of the escort shall take every precaution that females are separated from males and boys from men, and shall be responsible that the prisoners have no communication with outsiders and have no opportunity of obtaining forbidden articles (including cash) from their friends or relatives while in transit. The unauthorised cash, if any, received with the prisoner shall be forfeited to Government. The Officer-in-charge of escort of prisoners shall be informed by the Senior Jailor of such duties before removal of prisoners.

Incapacitated prisoners to be kept in hospitals for treatment.-

When a prisoner becomes ill in transit and is unable to continue his journey, he shall be taken by the Officer-in-charge of the escort to the nearest hospital or lockup for treatment by a Medical Officer, and a report of the circumstance shall be made to the Superintendent of the Prison to which the prisoner was being removed."

"22. Medical Officer to decide admission in certain cases.-

In the event of Medical Officer considering it advisable that they may not be admitted into prison, special provision for their accommodation outside the prison shall be made and the circumstances reported to the Inspector General of Prisons for the orders of State Government."

"26. Medical Officer to certify fitness of a prisoners to travel before his removal.-

(1) On the day previous to the transfer the Medical Officer will give a certificate that the prisoners are in a fit state to travel and that they are free from any illness likely to render them dangerous to others. No prisoner who is not fit to travel shall be sent.

(2) The Medical Officer shall see that prisoners who are sick are provided with proper diet on journey."

Considering these provisions, it appears to us that it is absolutely essential to have such medical establishments at different places as stated to reduce the risk to prisoner''s health in transit to minimum and also not to run any risk from the security point of view. A prisoner who is seriously ill may not be able to undertake long journey if he is to be brought from a farther place in South Gujarat or a place from Kachchha or Banaskantha district to Ahmedabad. Such long journey may pose problem of security also.

In light of these provisions of prison legislations relating to the prisoners'' sickness and the medical treatment to be made available to them, the following recommendations as suggested by the Committee and to which we are in total agreement, can be made to the State Government. They are as under :-

At least in the major Central Jails like Sabarmati Central Jail, Vadodara Central Jail, Surat Central Jail, Rajkot Central Jail and Central Jails at Jamnagar and Bhuj, establishment of ICCU may be considered where patient should be treated for observation and necessary treatment required in ICCU. Necessary staff for the ICCU may be appointed i.e. Consultant, Medical Officer, Nursing Staff, Attendant and Technical staff.

In these hospitals also facilities for treatment for various types of diseases such as Malaria, Typhoid, Jaundice, etc. as well as ailments like renal stones, gallbladder stones, appendicitis, ulcers, ailments relating to respiratory system, rectum should also be made available. This list is only illustrative and not exhaustive. The hospital should be equipped with proper medical staff, necessary equipments including instruments for surgical operations, operation theatre.

Routine Pathology/Radiology reports should be prepared in the jail itself by developing Pathology laboratory, sonography and x-ray facility i.e. X-ray Chest, Sonography, Barium investigation, routine pathology investigations i.e. Blood count, Creatinine, Sugar for control of diabetic, liver function etc. For further specialty laboratory investigation blood may be collected in the jail hospital and sent to the Civil Hospital or Super Specialty Hospital for investigation and the report may sent to the Jail Hospital by fax or by hand or through e-mail.

From the other Jails in the State the prisoners for further treatment may be referred to the Sabarmati Central Jail and the centres referred to above, where certain advanced facilities as mentioned above might be created.

The Staff necessary for the OPD, Indoor and ICCU may be appointed and designated as the Jail Staff so that there would not be any problem for seeing the patient. This is to avoid the prisoners getting mixed up with other patients, especially as out door patients in the Civil Hospital and giving the relatives/friends undue chance to meet the prisoner. If possible these facilities may be created in collaboration with local Civil Hospitals and it may be treated as extension or part of the Civil Hospital, so that its management can be directly under the supervision of the Superintendent, Civil Hospital.

6(i) Only if in the opinion of the concerned Medical Officer treating the prisoner or the Jail Medical Officer presence of a relative is necessary, relative of the prisoner undergoing the treatment may be permitted to stay with the patient and that too till such time as in the opinion of the said Medical Officer it is necessary.

(ii) Medicines and materials required for treatment should be made available in the hospital itself and it should be made available to the prisoners free of cost.

A dangerous prisoner should be treated as far as possible in Jail Hospital in isolation.

Similarly, special jail ward may be created in the specialized hospitals like Kidney institute, U N Mehta Hospital, as in the Civil Hospital and need to be well equipped. Such ward may be kept away from the other wards for better security.

Separate ward for female prisoner may be provided in the Civil Hospital and in other specialized Hospitals recognized by the Government.

9(i) Wards referred to at sr. No. 7 and 8, subject to the hospital regulations, should be directly under the control and supervision of the local jail authorities and the prisoners admitted therein should be governed by all the prison regulations unless some relaxation therein is advised by the concerned Medical Officer to facilitate better treatment of the patient.

9(ii) Unless in the opinion of the Jail Medical Officer or the Medical Officer under whose treatment the prisoner is, that it is absolutely necessary to allow the prisoner to have treatment from the outside doctor of his choice, no prisoner should be permitted to have such facility and he should not be granted parole on that count.

Facility for security personnel and the attendant/relatives to meet the prisoner may be created in such jail ward in the Civil Hospital.

A committee of experts be constituted which could conceive the ideas and give them proper shape to have the up-to-date jail hospitals referred to above.

These recommendations can be very useful and provide adequate guideline for establishment of the prison hospitals. If the State prisons are equipped with such facilities, the need to remove the prisoners to Civil Hospital or specialty hospitals can be reduced to a considerable extent. Of course it does not seem to be feasible to have facilities of super specialty hospital in such prison hospitals, but atleast, as already stated, jail hospitals at the Centres stated above can be made sufficiently up-to-date so as to avoid frequent occurrence of instances like in the case of Mr. Amrutiya. It is also understandable that even with the updating of prison hospitals, the issue with regard to the adequate treatment of the ailing prisoners may not be tackled completely and there may be cases where the prisoners may have to be referred to the Civil Hospital or super specialty hospitals, but even there also certain adequate safeguards can be provided for from the point of view of security, prevention of abuse of the facility afforded to the concerned prisoner, etc. The Committee has also taken this aspect into consideration and certain recommendations have been made on this line, which are as follows :-

"10. No reference or transfer of prisoners to Civil Hospital/ Super Specialty Hospital for day-to-day problem be made and the prisoners should be attended at the Central Jail Hospital by the Medical Officer or Doctors appointed specifically for Jail.

Reference of prisoners from the Jail say like Sabarmati Jail should be done only for interventional procedures i.e. Angiography, Angioplasty, Peripheral Angiography, Endoscopy, and other / major surgeries like Bypass Surgeries, Appendectomy, cholescystomy, major orthopedic surgery but not routine day to day minor OPD base minimum operative procedures.

The patient should be referred for the investigations, which are not done like CAT scan, MRI and other specialty investigations and for super specialty reference for the diagnosis only.

The Panel of Doctors may be appointed from time to time to consider admission of patient from jail hospitals to Civil Hospital/Super Specialty Hospital. Such selection of panel of doctors may be made on yearly basis/periodically.

xxx xxx xxx 15. Special terms and conditions should be laid down for allotment of special room in the Civil Hospital or super specialty hospitals. Opinions of team of doctors (as may be selected by the Superintendent of the Civil Hospital), along with the Jail Superintendent/ Police Officer responsible for security are required to be drawn in writing before shifting a prisoner to special ward.

In case of emergency shifting of a prisoner to special ward or in to ICCU, post facto confirmation of team of doctors be taken. In all case Jail Authorities must be informed and post facto permission to shift the prisoner be obtained.

Movement Register for the prisoner may be strictly maintained.

Where long treatment is likely, every week, joint review of condition of the prisoner in the Hospital may be made by the Medical Officer/ Superintendent of the Hospital and the Superintendent of the Jail to determine as to whether further stay of the prisoner is required in the Hospital.

The meals to the prisoner must be provided as per provisions of the Bombay Jail Manual and in case of any deviation where special diet is required the prescription of the doctor is required. In such case when meal is to be supplied from outside, security aspect must be kept in mind and the concerned doctor under whom the prisoner is under treatment must obtain permission of the Jail/Police authorities.

The dress code as provided in the Bombay Jail Manual, 1955 is also required to be followed. The convict prisoner must wear the Jail uniform or the Hospital uniform with RED strip woven in to the cloth."

At this juncture, it would also be worthwhile to refer to the recommendations made by the Committee with regard to the measures of security and other facilities. Some of them can be reproduced verbatim as under :-

"A. Facilities for security personnel in the Civil Hospital may be created for facilitating smooth change over of guard, emergency communication to Jail Superintendent and higher authorities. There may be designated area where the relatives or persons as permitted under the provisions of Gujarat [Facilities of interviews, communication, etc.] to Prisoners Rules, 1973. (Home department Notification of 15th October, 1973), can approach.

B. Metal detectors may be provided and frisking of visitors including nursing staff may be religiously done.

C. Though communication by post and through telegram are allowed, no facility for telephonic conversation be provided to a prisoner and no visitor with mobile phone or such gadget facilitating any communication be allowed.

D. Facilities to check the food coming from Hospital/outside to ensure security may be provided.

E. The logbook for the visitors to be maintained and implemented strictly as per the provisions of Jail Manuals etc.

F. The Jail Manual needs to be updated. The Regulations and provisions of the Jail Manuals must be provided to all concerned handling a prisoner in the Civil Hospital.

G. Pocket book of do''s and don''ts may be provided to the Medical staff and the police personnel on security duty.

H. The Jail Superintendent and the Superintendent of the Civil Hospital must make regular checking of arrangements individually and jointly."

Thus it can be seen that there are legal provisions contained in the statutes relating to the prison and the prisoners prescribing that the prisoners should be provided with adequate medical facilities. There are also provisions which lay down the measures which are required to be taken while the prisoner is admitted or taken for admission in the hospital. The aforesaid recommendations are actively based on these provisions. It is also obvious that the Government is invested with adequate power to setup such machinery to give appropriate medical treatment to the ailing prisoners and when it has means to fulfill the objects of the aforesaid provisions of the statutes, it is the bounden duty of the Government not only to provide for such facilities, but to have proper establishment with up-to-date medical equipments, medical staff, nursing staff and the administrative as well as the working staff. Merely because the prisoner is a class which is for the time being condemned by the society and it is kept away from it, the prisoners do not cease to be the human beings. They are also entitled to have proper medical treatment for curing them from the ailments with which they are suffering. It is always to be kept in mind that they are the responsibility of the Government and it is the duty of the Government to avail them all the necessary medical treatment and they cannot be discriminated for this purpose from any other ordinary citizen subject to the provisions of law stated hereinabove. It is true that in doing so the Government cannot overlook several important factors such as the security, the chances of the prisoner absconding or his connections with anti-social elements. However, those factors can be taken care of by the Government particularly in light of the recommendations incorporated in this judgment. It is also true that the prisoners are deprived of their personal liberty in accordance with the procedure established by law. However, their right to life enshrined in Article 21 cannot be ignored. They have a right to live with human dignity. They are also entitled to have the bare necessities of life such as means to live healthy life, adequate nutrition, clothing, shelter over the head, facilities for reading, writing, interview with family members and friends. Of course this is subject to the prison regulations, but at the same time the most vital aspect of the life, namely the health cannot be overlooked or ignored. The prisoners should not be discriminated in the matter of availability of medical facilities. The Apex Court has considered these aspects vis-a-vis Article 21 and has made the issue very clear by now. The Apex Court has rendered a decision in the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi reported in AIR 1981 SC 746, wherein it has laid down as under :-

"6. Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh Vs. The State of U.P. and Others, Suba Rao, J. quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois (1877) 94 US 113 to emphasize the quality of life covered by Article 21 :

" Sunil Batra Vs. Delhi Administration and Others etc., By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world."

and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra Vs. Delhi Administration and Others etc., (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and fortiori, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is, therefore, clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

But the question which arises is whether the right of life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and faculties for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.

Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights."

10.1. Similarly in the case of A.K. Roy and Others Vs. Union of India (UOI) and Others, the Apex Court has observed as under :-

"108. ... We would however, like to say that the basic commitment of our constitution is to foster human dignity and the well being of our people. In recent times, we have had many an occasion to alert the authorities to the need to treat even the convicts in a manner consistent with human dignity. The judgment of Krishna Iyer, J. in Sunil Batra Vs. Delhi Administration and Others etc., is an instance in point. It highlights that places of incarceration are "part of the Indian earth" and that, "the Indian Constitution cannot be held at bay by jail officials dressed in a little, brief authority". We must impress upon the Government that the detenus must be afforded all reasonable facilities for an existence consistent with human dignity. We see no reason why they should not be permitted to wear their own clothes, eat their own food, have interviews with the members of their families atleast once a week and, last but not the least, have reading and writing material according to their reasonable requirements. Books are the best friends of man whether inside or outside the jail."

10.2. In light of the aforesaid decisions of the Apex Court and also foregoing discussion made in this judgment, it would be utmost necessary that the Government, at the major places set-up establishments of its own for the prisoners with all modern medical facilities and efficient and proper medical as well as nursing and administrative staff so as to not only provide proper treatment to the prisoners but at the same time keep check over them and their activities. The present day medical setup of the prisons in the districts need to be updated to such an extent that only in the complicated cases the patients are required to be referred to super specialty hospitals or the Civil Hospitals. It clearly appears to us that the present day setup is very poor and the prisoners deserve better treatment and better facilities.

10.3. It is clear from the decisions of the Apex Court that it is the duty of the State Government to treat the convicts with human dignity and to provide them bare necessities of life. It has power and means to do so. When there is duty coupled with power, this Court will be well within its bounds to give directions to the State Government to implement the recommendations made hereinabove.

We, therefore, direct the Government to implement the recommendations made above at the earliest.

11.1. Before parting with the judgment, we would like to appreciate the exercise undertaken by the Committee and to place on record its report which has rendered immense help to us in delivering this judgment. But for its report it would not have been possible for us to make the recommendations stated above. We also take note of the fact with appreciation that the Committee has not only kept the medical aspects in view but it has given its anxious thought to the different provisions of the prison legislation and has made valuable recommendations on the aspect of security also. It has done a commendable job. We sincerely hope that the members of the Committee may render their valuable help to the State Government in implementing the recommendations made in this judgment.

Rule made absolute accordingly.

The office is directed to return the record seized by the police to the Civil Hospital, Ahmedabad, forthwith.