JUDGMENT Imtiyaz Murtaza and Amar Saran, JJ.
1. Heard Shri P.C. Srivastava, learned Counsel for the petitioner, Shri S.N. Singh, learned Counsel for opposite party No. 4 and learned Government Advocate.
2. After partly hearing the case on 11.12.2006,. we had directed that the case be put up today, i.e. 12.12.2006 in order to enable the jailor, district jail Basti to submit an explanation as to how respondent No. 4, Ramvriksh Yadav was transferred to the district hospital as was mentioned in the supplementary affidavit filed by the petitioner dated 30.11.2006 as we were not satisfied by the counter affidavit of the jailor Sri Mahabir Pal dated 11.12.2006.
3. Learned Government Advocate has drawn our attention to paragraph 1058 of the Jail Manual, which contains the enabling provisions for transferring a prisoner to hospital from jail. Paragraph 1058 (a) and (b) of the Jail Manual read as follows:
1058. Removal to district hospital for treatment: (a) on the advice of the Civil Surgeon and after obtaining the sanction of the Inspector General the Superintendent may remove to the Local District Hospital and prisoner who is suffering from a disease which cannot be properly treated in the jail or who should undergo a surgical operation which cannot be properly performed in the jail. If the Civil Surgeon is of opinion that the delay necessary to obtain the sanction of the Inspector General would endanger the prisoner's life the transfer may be made and a report submitted to the Inspector General for formal sanction. (b) Civil Surgeon shall, however, exercise the utmost possible care in recommending prisoners for treatment in outside institutions. Jail hospitals are equipped to meet all ordinary requirements, and it should seldom be necessary to remove prisoners for treatment elsewhere except for surgical operations.
4. We regret to note that there has been no compliance of the aforesaid provisions and the transfer has been effected by the Superintendent of the District Jail, Basti or the Jailor in patent violation of the aforesaid provisions as no opinion appears to have been obtained from the Inspector General, Prisons nor does the condition of the prisoner appear to be so serious as the medical report given by the jail doctor dated 23.11.2006 merely shows that the prisoner had a high blood pressure of only 146/98. The said report did not mention that this raised blood pressure was dangerous to life or treatment of the same could not be given in the jail hospital and it was necessary to transfer the prisoner to the district hospital.
5. It is clearly mentioned in paragraph 1058 of the Jail Manual that ordinarily transfers shall not be made from jail to the district hospital unless the condition of the prisoner is very serious or he needs some operation which cannot be done in the jail hospital.
6. It was admitted by the learned Government Advocate that even after effecting the transfer from the jail to the hospital, no communication was sent to the Inspector General as is required in the case of emergency transfers on the ground of illnesses which could pose a serious risk to life in the jail.
7. We also find that an application was moved before the Chief Judicial Magistrate by the prisoner on 10.11.2006 complaining that he was a patient of asthma and high blood pressure and that facilities for the treatment of the same were limited in jail. However, by an order dated 10.11.2006, the C.J.M., Basti had rejected the said application observing that no medical certificate had been filed with the said application and that the prisoner appeared to be healthy and the required medical treatment could be made available to him in the jail.
8. We note that another application for transfer to district hospital was moved on 22.11.2006 on which the C.J.M. passed an order calling for the report of the Superintendent district jail, Basti on 24.11.2006 and in that context the report of the jail doctor dated 23.11.2006 showing the slightly raised blood pressure abovementioned had been filed. However, it appears that the prisoner got the said application dated 22.11.2006 dismissed as not pressed on 26.11.2006, but in the meantime he was successful in getting himself transferred to the district hospital on 24.11.2006.
9. We are distressed to note that all the authorities appeared to be dancing to the tune of this petty politician belongs to the ruling party from Basti and readily the jail doctor has given a certificate of high blood pressure to the prisoner and the prisoner appears to have been transferred to the district hospital in contravention of norms and Rules prescribed in the jail manual, and it appears that the transfer has been effected without any formal order of the C.J.M. or the Superintendent of the district jail as required under paragraph 1058 of the jail manual. That the prisoner exercises unwarranted clout, and that government authorities have abandoned all legal norms and procedures to give him special favours is apparent from the fact that this prisoner after being assigned the main role of firing with his gunner's carbine and murdering a rival Mahatam Yadav in the premises, of an intermediate college in Basti on 25.8.05 at 2.15 p.m. during Panchayat elections about which an FIR was lodged on 25.8.05 at 4.20 p.m., and where his gunner Prem Singh had also reported that the petitioner had snatched his carbine for shooting down his rival. Yet the prisoner was not even charge-sheeted in that case, and charge sheet only submitted against him after orders of an earlier Division Bench dated 24.3.2006 in Cr. Misc. Writ Petition No. 60 of 2006. Thereafter only after repeated orders by this bench, the prisoner has been sent to jail on 10.11.2006, one year and three months after the incident and about 8 months after the order in the earlier writ petition dated 24.3.06. The petitioner was also provided 5 gunners by the State, and the district committee consisting of the D.M. and SSP allowed the security provided to the prisoner to continue despite his involvement in the murder case dated 25.8.05 and inspite of noting that he was involved in 14 criminal cases in their recommendatory letter dated 20.4.06, and the gunners were only withdrawn after the Chief Minister's orders on 9.10.2006 as a result of our criticism of the practice of providing gunners against Government orders to persons with criminal records.
10. Learned Counsel for the petitioner informs us that on the previous night the prisoner has been transferred from district hospital to Trauma Center, Lucknow. However it must be observed that it is not at all understandable as to why the prisoner has been shifted to the elite Trauma Center at Lucknow, when he was not being treated for any injury and it also goes to show the kind of unlawful political clout enjoyed by this prisoner.
11. We, therefore, direct that the prisoner shall now forthwith be taken back to the district jail, Basti and as far as possible, the charge against him, which is to be framed on 14.12.2006 shall be framed on that date or very soon thereafter, if for any reason the authorities are unable to produce him before the Court concerned on 14.12.2006.
12. We also direct that the District Judge should ensure that after the charge being expeditiously framed against this prisoner, the trial shall be conducted against him on a day to day basis in accordance with the provisions of Section 309 of the Code of Criminal Procedure and that the investigating officer must ensure that the witnesses attend the Court and that they are provided adequate security for giving their evidence.
13. It will be open to the prisoner to apply to the trial court for medical facilities which should, as far as possible, be provided in the district jail itself and if the prisoner begins to suffer from some life threatening disease, or requires a surgical operation, which cannot properly be done in the jail hospital, only in those circumstances can he move an application strictly in accordance with paragraph 1058 before the Court concerned.
14. The second issue raised by the learned Counsel for the petitioner was that on 22.11.2006 the prisoner threw a party to celebrate the birth day of Shri Mulayam Singh Yadav, the Chief Minister of U.P. in jail in which a 101 kg. cake was cut, in proof whereof a news report of Sahara news bureau dated 22.11.2006, which contained a photograph of the prisoner being garlanded in front of huge cake flanked by his supporters in jail has been filed. The jailor appears to have denied that any birth day of the Chief Minister was celebrated in jail. However, he admitted in his counter affidavit that visitors provided fruits and sweets, which were distributed by the prisoner amongst other prisoners in the district jail, Basti.
15. Prima facie such an action clearly appears to be against the rules and the counter affidavit dated 8.12.2006 filed on behalf of the District Magistrate, Basti shows that he has already ordered a Magisterial enquiry by the S.D.M. Basti on 29.11.2006 to submit a report within a month about the aforesaid irregularities and the programme, which was conducted in the district jail and about which a report appeared on 23.11.2006 in the 'Dainik Jagran' newspaper.
16. We think it would be proper to direct the District Judge, Basti to get both the matters enquired into by an Additional District Judge as to whether (a) there were irregularities and illegalities in the transfer of the prisoner from the district jail to the district hospital and thereafter to the trauma center and who were the individuals and authorities involved in the illegal action so that departmental or other proceedings could be initiated against them and (b) whether indeed the prisoner celebrated the birth day of the Chief Minister in the manner alleged in the supplementary affidavit filed on behalf of the petitioner dated 30.11.2006 and whether the same was in violation of the rules and who were the individuals and authorities guilty of the said violation.
17. The report of the A.D.J. concerned shall be placed before this Court within six weeks from today.
18. The report of the S.D.M., who is conducting the enquiry as per the order of the D.M. dated 29.11.2006 shall also be placed before this Court within six weeks.
19. We also direct the Inspector General (Prisons) to ensure that prisoners are not transferred outside the jail on flimsy grounds in violation of the pre-conditions contained in paragraph 1058 of the Jail Manual even when they are not suffering from any illness, or need a surgical operation which cannot be properly done in jail, and that henceforth any such transfers must only be made on the advice of the civil surgeon and after obtaining the sanction of the Inspector General (Prisons) as mentioned in paragraph 1058 of the Jail Manual. Even in emergency transfers when the civil surgeon is of the opinion that the delay could be dangerous to a prisoner's life, the report has to be made after the transfer for the formal sanct on of the Inspector General (Prisons) as required under paragraph 1058.
20. The aforesaid directions are necessary because there have been reports of a large number of incidents of prisoners absconding from custody when they are taken outside on the pre text of medical treatment or they commit crimes and in any case such an act of permitting prisoners to leave prison ostensibly for medical treatment in outside hospitals where they can freely meet relations and supporters causes great resentment and discouragement in the eyes of society and the victims. This practice must be strictly checked by the Inspector General, Prisons.
21. We are also not satisfied with the explanation given by the Secretary (Home) in his counter affidavit dated 11.12.2006 to our query in our order dated 11.10.2006 as to how the name of the prisoner was omitted from the list of persons who have been provided gunners by the State Government in pursuance of our order in Cr. Misc Writ petition No. 5520 of 2006 (Gayur Hasan v. State of U.P. and Ors.). The Secretary (Home) has sought to place blame for this lapse on the office of the Deputy Inspector General, Security, Security Branch, Intelligence Department, U.P., Lucknow by stating that the Special Secretary (Home) sent letters on 22.11.2006 and 27.11.2006 asking the Additional Director General of Police (Security) to submit an explanation with regard to the aforesaid omission. The explanation given in the letter of the Deputy Inspector General, Security, Security Branch, Intelligence Department, U.P., Lucknow through his letter dated 28.11.2006 that as the list of persons who had been provided security and gunners was too exhaustive and as such due to an inadvertent mistake the name of Ramvriksha Yadav was omitted, does not prima facie appear to be too credible to us. Also according to the affidavit of the Secretary (Home) that in the list furnised by the authorities of Sant Kabir Nagar, the name of Ramvriksha Yadav was mentioned, and yet as the Intelligence Security department had failed to mention his name in the list sent to the Home department, in those circumstances a letter was again sent on 6.12.2006 by the Special Secretary (Home) asking for an explanation of the omission from the security department by 11.12.2006, but no explanation has been received.
22. We, therefore, direct the Deputy Inspector General, Security, Security Branch, Intelligence Department, U.P., Lucknow to be present in this Court on the next date of listing to furnish his explanation along with an affidavit as to the circumstances in which the name of Ramvriksha Yadav was omitted from the list of gunners furnished to the home department Although, we may note that it is surprising that the home department, which has itself passed orders for provision of gunners, seeks to raise a plea that the name of the prisoner, who had been provided as many as five gunners by the Home department was not included in the list only because there was an omission in the list from the office of the Deputy Inspector General, Security, Security Branch, Intelligence Department, U.P., Lucknow does not strongly commend itself to us, and we hope they are not passing the buck in an effort to exonerate themselves.
23. List this case on 5.2.2007 for submission of the aforesaid compliance reports, and for further orders.
24. Registrar General is directed to send a copy of this order to the District Judge and other concerned parties within three days for compliance.
25. A copy of this order shall be given to the learned Government Advocate within 48 hours for compliance.