STATE OF U.P. versus GAYATRI PRASAD PRAJAPATI on 15 October 2020

1. Leave granted.

2. This appeal has been filed questioning the order dated 03.09.2020Fpassed by Allahabad High Court, Lucknow Bench, Lucknow, by whichthe respondent has been granted interim bail on medical grounds for aperiod of two months while directing listing of the regular Bail ApplicationNo. 5743 of 2019 in the week commencing from 28.09.2020 for hearing.

3. Brief facts of the case necessary to decide this appeal are:-G

3.1The respondent, a former minister in the State of U.P. is anaccused in case Crime No.29 of 2017 under Sections376(D)/376/511/ 504/506 of I.P.C. read with Sections 3/4of POCSO Act, Police Station Gautam Palli, DistrictLucknow.H

3.2The first information report was registered against theArespondent after an order was passed by this Court on17.02.2017 in a Writ Petition (Crl.) No. 160 of 2016 filed bythe complainant. The respondent was granted bail by theAdditional District and Sessions Judge, Lucknow vide orderdated 25.04.2017, which bail was cancelled before theBrespondent could be released from the jail by the High Courtvide its order dated 26.05.2017 on an application filed bythe State of U.P.

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3.3Another Bail Application No.10101 of 2017 filed by therespondent was again rejected by the High Court by orderdated 14.12.2017.

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3.4The respondent was admitted for treatment in King GeorgeMedical University, Lucknow (hereinafter referred to as“K.G.M.U.”) on 03.05.2019. The respondent moved a BailApplication No.5743 of 2019 before the High Court. Anapplication C.M. Case No. 99240 of 2019 was filed by theDrespondent on 19.08.2019 seeking interim bail on medicalgrounds for a period of six months. The respondent remainedadmitted in K.G.M.U. from 03.05.2019 to 17.01.2020 whenhe was discharged. The High Court passed an order on05.03.2020 while hearing the bail application as well as shortEterm bail application providing that applicant be sent to theDepartment of Urology of K.G.M.U., Lucknow, where heshould be examined/admitted as per opinion of doctorconcerned. However, the admission/treatment of theapplicant-accused shall be under the supervision of policeauthorities/team to be constituted by the concernedFauthority.

3.5The High Court further directed that applicant-accused maybe examined by a medical board to be constituted by theVice-Chancellor, K.G.M.U., Lucknow and the said reportmay be placed before the Court.

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3.6On 09.03.2020, the respondent was again admitted inK.G.M.U. The respondent was shifted on 04.06.2020 tothe Sanjay Gandhi Postgraduate Institute of MedicalSciences, Lucknow (hereinafter referred to as“S.G.P.G.I.M.S.”) for specialised treatment, S.G.P.G.I.M.S.

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Abeing multi super-speciality (a tertiary medical care super-speciality hospital). The medical board evaluated therespondent and submitted the report on 10.06.2020. Anaffidavit was also filed before the High Court regarding themedical 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 toBK.G.M.U. The High Court by impugned order dated03.09.2020 allowed the interim bail application of theapplicant on medical grounds.

3.7The State of U.P. aggrieved by the order dated 03.09.2020has come up in this appeal.C

4. We have heard Shri S.V. Raju, learned Additional SolicitorGeneral for the appellant. Dr. Rajeev Dhawan, learned senior counselhas appeared for the respondent.

5. Learned ASG for the appellant submits that the respondentDwas given due treatment in the K.G.M.U. as well as in the super-specialityhospital (S.G.P.G.I.M.S.). Relevant reports including the report of medicalboard was placed before the High Court reflecting on the medicalcondition of the applicant and the treatment being given. The High Courtwhile passing the impugned order did not refer to reports of the medicalboard, which was submitted pursuant to the order of the High Court andEreliance was placed on the report of Senior Superintendant of DistrictJail as well as on the medical opinion of Department of Urology ofK.G.M.U. dated 17.01.2020. The subsequent materials, which were onthe record including the report of medical board had not been advertedto or considered while passing the impugned order. The appellant’sFmedical condition being under control due to treatment given in aforesaidmedical institutions, there was no occasion to release the respondent oninterim bail. The respondent has been, for the most of the period in lastone year, in the hospital alone. He submits that under one of the conditionsof interim bail [paragraph 27 (ii)], the respondent shall ordinarily resideat a place of residence, which indicates that the respondent is to ordinarilyGreside at his residence and not for any medical emergency. Shri Rajuhas also referred to Clinical Summary dated 09.09.2020 of Departmentof Urology, K.G. Medical University, Lucknow, which has been broughton record by the respondent himself as well as letter dated 05.10.2020of the Department of Urology, K.G. Medical University, which indicateHthat the respondent has been advised to take tablets and it is also mentioned that he can take treatment from any super-speciality hospitalin the country. By subsequent letter dated 05.10.2020, he has been askedto go to S.G.P.G.I.M.S., Lucknow, Neurology Department for NCVtesting. Shri Raju submits that the State is providing full medical facilitiesand treatment to the respondent and the High Court has erred in grantinginterim bail on medical ground without adverting to the medical reportssubmitted by the K.G.M.U. and S.G.P.G.I.M.S.

6. Dr. Rajeev Dhawan, learned senior counsel appearing for therespondent refuting the submission of the learned ASG for the appellantcontends that even if the offence alleged against the respondent is aserious offence and respondent may have political linkage but at presentwe are not looking at the nature of offence. When a person is ill and heis under prison, he requires a humane treatment. An accused cannot begiven a different treatment. The respondent was being moved from onehospital to another hospital, which was not by his own choice. He hasreferred to the report of K.G.M.U., Clinical Summary dated 04.06.2020wherein it has been mentioned that patient has been referred toS.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 hasbeen referred to in which K.G.M.U. has observed that since NCV testingis not available in K.G.M.U., the patient is being referred to NeurologyDepartment of S.G.P.G.I.M.S., for the same. Dr. Dhawan submits thatat present, the respondent is in K.G.M.U. Dr. Dhawan further submitsthat the respondent be permitted to continue at K.G.M.U. and should notbe transferred to jail.

7. We have considered the submissions of the learned counsel forthe parties and have perused the records.

8. In the present appeal, our consideration is confined only to theinterim bail, which has been granted to the respondent by order dated03.09.2020. The Bail Application No. 5743 of 2019 being still pending inthe High Court, our considerations and observations are only with respectto order granting interim bail and shall have no bearing on the merits ofthe bail application, which is pending consideration before the High Court.

9. From the facts of the case, as noted above, it is clear that on03.05.2019, the respondent was admitted in K.G.M.U. and after morethan seven months discharged on 17.01.2020. The provisional diagnosisas mentioned in the Clinical Summary is as follows:- A

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A“Provisional Diagnosis : UTI with DM with HTN with Bamboospine with seronegative Spondylorthropathy.”

10. The respondent was advised taking of tablets, follow up reviewin Urology OPD on every Monday and was discharged on stable conditionon 17.01.2020. Under the orders of the High Court, the medical boardBwas constituted by Chief Medical Officer. The medical board reportdated 10.06.2020 has been brought on record, the medical board reportdated 10.06.2020 states:- “To, Chief Medical Officer,CLucknow, Uttar Pradesh.

Respected Sir,

With reference to letter number eqo fpo vo /2o19/6o72-5 dated08/08/2020 and instructions from Director, Dr. RML Institute of MedicalSciences, Lucknow, UP, we were nominated as members of medicalDboard under the chairmanship of C.M.O. Lucknow. After closely goingthrough the medical records of Mr. Gayatri Prajapati aged 54 years,male from district jail hospital, Lucknow and King George’s MedicalUniversity, Lucknow the following observations were made:-

1. The patient is suffering from type-2 diabetes mellitus, benignEprostate enlargement, renal dysfunction, low back pain relatedto seronegative spondylorthropathy.

2. There is no major disparity in the treatment of the patient fromboth the hospitals and considering the current reports, patientcan continue treatment at jail hospital but in view of renalFdysfunction and seronagative spondylorthropathy, consultationfrom nephrologist and orthopedician is advisable.

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

G11. Before the High Court, an affidavit was also filed by the Statedated 12.06.2020 bringing on record medical treatment report ofS.G.P.G.I.M.S. The affidavit clearly stated that S.G.P.G.I.M.S., Lucknowoffers unmatchable and unsurpassable medical expertise in numerousfield and patients from far off places come to S.G.P.G.I.M.S., Lucknowfor availing specialised medical treatment.H

STATE OF U.P. v. GAYATRI PRASAD PRAJAPATI[ASHOK BHUSHAN, J.]

12. The High Court by the impugned order dated 03.09.2020 hasdirected for release of the respondent on medical grounds, although theorder runs in 23 pages but it is the paragraph 27 of the judgment, whichgives the reasoning for grant of interim bail. Paragraph 27 is as follows:- “27. Having considered the facts and circumstances of the presentcase and the applicant’s medical condition, which is confirmed bythe medical status report, it shows that the applicant is sufferingfrom disease i.e. UTI with Diabetes mellitus with HTN withBamboo spine with seronegative Spondylorthropathy; propertreatment is not available in K.G.M.U. Hospital, Lucknow anddoctors have advised proper treatment from multiple superspecialties, at a tertiary care super specialty hospital; further threatto the applicant’s health in the prevailing times of Covid-19pandemic is real and imminent; and in view of the assurancesextended on behalf of the applicant that he shall not apprehend orinfluence the prosecutix and her family members, this Court ispersuaded to grant the applicant, Gayatri Prasad Prajapati, interimbail for a period of two months from the date of his release, subjectto the following conditions:

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(ii) The applicant shall not leave the country without prior permissionof the trial court and shall ordinarily reside at a place of residence,as assured, far from the place of residence of the prosecutrix andher immediate family; and the complete address of such placeshall 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 medicalstatus report showing that applicant is suffering from disease,i.e., UTI with Diabetes mellitus with HTN with Bamboo spinewith seronegative Spondylorthropathy; (b) Proper treatment is not available in K.G.M.U., Lucknow;

(c) Doctors have advised proper treatment from multiple superspecialities, at a tertiary care super speciality hospital; and (d) Threat to the applicant’s health in the prevailing times ofCOVID-19 pandemic is real and imminent.

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A14. The medical condition of the respondent, the treatment givenand various reports including the report of medical board were on therecord. The S.G.P.G.I.M.S. is a super-speciality hospital where therespondent has been referred for specified purposes and report ofS.G.P.G.I.M.S. has also been brought on the record as Annexure P-10alongwith the letter dated 10.06.2020 addressed to Chief MedicalBSuperintendant, S.G.P.G.I.M.S., Lucknow. The medical report of therespondent dated 10.06.2020 in final evaluation states:- “Final Evaluation Glycemia : better controlledCHypertension : well controlled Pulmonary consult: Completed, advised as per notes above Urology work-up on- going.

15. The above report of the S.G.P.G.I.M.S., i.e., the super-specialityDhospital, which was on the record as well as report of the medical boarddated 10.06.2020, which was brought in the notice of the High Courthave neither been considered nor referred to by the High Court in theimpugned order. When the respondent was being given treatment in thesuper-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended byK.G.M.U., we fail to see as to what were the shortcomings in the medicalEtreatment offered to respondent, which could have been the basis forgrant of interim bail on medical ground. Further, as per condition (ii)mentioned in paragraph 27, the High Court contemplated that respondentshall ordinarily reside at a place of residence, as assured, far from theplace of residence of the prosecutrix and her immediate family, thus, theFcontemplation was that respondent shall reside at his residence. Therewas no satisfaction recorded by the High Court that treatment offeredto respondent was not adequate and he requires any further treatmentby any particular medical institute for which it is necessary to releasethe respondent on interim bail on medical grounds.

G16. Dr. Dhawan submits that every person, who is accused of anoffence, even if the offence is a serious offence, requires a humanetreatment by the prison authorities. There can be no two views withregard to above. Humane treatment to all including an accused isrequirement of law. Furthermore, a prisoner, who is suffering from anailment, has to be given due treatment and care while in prison.H

17. Learned counsel for both the parties have referred to ClinicalSummary dated 09.09.2020 as well as the letter dated 05.10.2020 ofK.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 therespondent, which is apparent from the additional documents filed asAnnexure A-2 and Annexure A-3 alongwith the application dated10.10.2020. The High Court, without considering the entire materials onrecord, has passed the impugned order dated 03.09.2020, which isunsustainable.

19. In result, we allow this appeal, set aside the order dated03.09.2020. We may again make it clear that observations made by us inthis order are only for deciding this appeal and shall have no bearing onthe merits of the Bail Application No.5743 of 2019, which is still pendingbefore the High Court for consideration.

Devika Gujral

Appeal allowed.

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