(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Rule.
Learned APP, Mr.Pandya, waives service of Rule on behalf of respondent - State.
2. The present application has been preferred by the applicant - convict for temporary bail, who had sustained injury on account of collapsing of a portion of the slab inside the barrack. This Court on 13.3.2012 had passed the following order :
"1. The present application has been preferred by the applicant - convict for temporary bail on the ground that he has sustained injuries on account of the collapsing of a portion of the slab inside the barrack and thereafter he was partly treated as indoor patient and he has again sent back to the jail and his desire is to see that the complete treatment of the fracture sustained by him is taken through private doctor.
2. The incident in question, in our prima facie view, shows that the condition of the barrack of the jail, wherein the convict - applicant was kept, must be in dilapidated condition, otherwise, it would not result into the consequence of collapsing of the slab in part. It is hardly required to be stated that when any convict is kept in a jail, he or she is required to be treated as human being and if the construction or the condition of the jail is in dilapidated position, it would not only create unsafe atmosphere, but it can rather be said that he or she is not properly treated as human being.
3. We need to record that all convicts, whose appeals are pending, could be said as under the judicial custody of this Court. In the same manner, all under-trial prisoners, whose matters are pending in the subordinate Court to this Court are also in the judicial custody. It is required for the State to ensure that all convicts as well as under-trial prisoners are kept in the jail, where basic facilities for safe survival of human being are being provided. Such would include safe construction of buildings or barracks in contradistinction to a dilapidated building or a barrack.
4. By the present application, it has come on record that the barrack No.5 of Bhavnagar Jail was in dilapidated condition and such has resulted the present serious injury to the applicant - convict.
5. Under these circumstances, we find that if the condition of the building of the jail is either dilapidated or is such where a human being cannot live in safe condition, it would be required for this Court to issue appropriate directions in order to ensure that the State complies with its obligation to keep the convict or the under-trial prisoners in such condition, where the basic facilities for safe survival of the human being are provided to them.
6. It has been stated by the learned Counsel for the applicant - convict that the applicant - convict is unable to attend natural calls, nor is there any movement on account of the fracture sustained by him due to collapsing of a portion of the slab in barrack No.5.
7. Hence, we prima facie find that it would be a case for issuance of immediate interim directions for proper treatment of the applicant - convict as well as to get the report of the conditions of the jails, where such incident has happened. As it has come to our notice about the condition of the jail in Bhavnagar, it would also be appropriate to call for the record of other jails in Gujarat State, where the convicts or the under-trial prisoners are kept and their cases are pending in the respective Courts.
8. Hence, the following orders:-
(a) The State of Gujarat, through Additional Chief Secretary, Home Department as well as I.G. (Prisons), State of Gujarat, shall be impleaded as party respondents.
(b) District Judge, Bhavnagar is directed to visit Bhavnagar Jail within one week and shall report to this Court about the conditions of the jail of Bhavnagar in general and of barrack No.5 in particular and such report shall be submitted within one week thereafter.
(c) The Additional Chief Secretary to the State Government (Home Department) as well as I.G. (Prisons) shall report to this Court about the conditions of the construction of the jails in Gujarat State, wherein the convicts and other under-trial prisoners are kept, whose matters are pending before the appropriate Courts, including this Court.
(d) The applicant - convict shall immediately be shifted to the Hospital, not later than 24 hours, and the Jail Authority concerned shall ensure that all necessary treatments are provided in the concerned Government Hospital to the applicant - convict for the fracture and other injuries sustained by him.
(e) The report of the Superintendent of the said hospital about the treatment undertaken and the condition of the applicant shall also be submitted on the next date.
9. S.O.
29.3.2012. Office shall convey the present order to the District Judge, Bhavnagar as well as to the other two authorities of the State Government immediately. Mr.Pandya, learned APP shall communicate the order to the concerned Jail Superintendent of Bhavnagar Jail and other concerned authorities. A copy of the order shall also be supplied to Mr.Pandya, learned APP."
2.1 Thereafter, the matter came to be considered once again on 29.3.2012 and following order was passed :
"1. Pursuant to the earlier order dated 13th March, 2012, it is reported that the applicant was taken to Hospital but was re-shifted to the jail soon thereafter. The medical papers are not produced on record. Under the circumstances, until, we consider the matter further, we direct the jail authority to shift the convict to the Hospital, within 24 hours and until further direction, he shall remain in Hospital and on the next date of hearing, report of his physical condition shall be produced before the Court.
2. Mr.Thakur, Inspector General of Prison, Gujarat State is present. Mr.K.L.Pandya, learned APP prays for time to place on record the relevant material along with the affidavit. At his request, the matter is adjourned to 10th April, 2012.
3. On the next date of hearing, relevant medical papers shall be kept ready for the perusal of the Court.
4. Learned APP shall be at the liberty to take out the copy of the report of the learned Principal District Judge, Bhavnagar. Learned advocate for the applicant shall also be at liberty to get the copy of the said report, if he so desires."
3. Today, when the matter is taken up, we have further heard learned counsel, Mr.Adeshra for the applicant and learned APP, Mr.Pandya for the respondent - State. As per the opinion of the doctor of the Civil Hospital, the recovery is made and no medicinal treatment is to be given, but the patient had to undergo the rest for some time and the said opinion was of 18.4.2012 and by now, about 12 days' time has passed. Further, as per the order of this Court, the convict was to remain in hospital and he has remained in hospital as declared by the learned APP.
However, Mr.Adeshra, learned counsel appearing for the applicant submitted that since the injury has been caused and the recovery is there, but the convict is unable to have his normal movement, he is desirous to be examined by some private doctor and also the treatment through him and therefore, it was prayed that he may be released on temporary bail for some time.
4. As regards the cause is concerned, hardly any discussion is required. Keeping in view the peculiar circumstances, we find that if the convict is desirous to have the treatment through private doctor, the same should be permitted, but as the convict is being released for temporary bail for the first time after conviction, he should provide for the surety having immovable property worth not less than Rs.25,000/-. In our view, the aforesaid aspect shall take care so far as the temporary bail prayed by the applicant - convict is concerned. On the other aspects, we have considered the report of the District Judge and we have also considered the affidavit of Administrative Officer working in the office of IG (Prison), whereby the details have been given for the position of the condition of other jails. As till now, no untoward incident is reported pertaining to the other jail, we leave it at that stage with the only direction to the State to ensure that condition of the jail in no case should be such which may endanger the safety of the convict while in jail, may be prisoner or under-trial prisoner. Hence, ordered accordingly.
5. In view of the aforesaid observations, following order :
I) The applicant - convict shall be released on temporary bail for a period of 2 weeks from the date of his actual release on personal bond of Rs.5000/- (Rupees Five Thousand only) and one surety having immovable property of worth not less than Rs.25,000/-. Such surety shall, at the time of the execution of the bond, submit the original documents of the property and upon surrendering by the convict after expiry of the period of temporary bail, such documents shall be returned to the surety.
6. The application is allowed to the aforesaid extent. Rule is made absolute. Direct service is permitted.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (vipul) Top