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Writ Jurisdiction Can Be Exercised To Grant Bail On Health Grounds Even When Bail Has Been Rejected On Merits Under UAPA : Bombay High Court

Sharmeen Hakim
22 Feb 2021 1:39 PM GMT
Varavara Rao Bail
An undertrial accused of serious offences under the Unlawful Activities Prevention Act (UAPA) can be granted bail purely on grounds of sickness and advanced age, if it is found that his continued incarceration is endangering his life, the Bombay High Court has held in its order granting temporary bail to Bhima Koregaon- Elgaar Parishad accused - Dr PV Varavara Rao.

A division bench of Justices SS Shinde and Manish Pitale said it was exercising its powers to direct Rao's release, as an undertrial's health cannot be ignored simply because he is accused of serious offences and his bail application is rejected on merits.

"Thus, it becomes clear that the writ jurisdiction of this court under Article 226 of the Constitution cannot be said to have been ousted merely because the application for grant of bail has been rejected under Section 43D(5) of the UAPA, on a finding that the accusations against the undertrial are found to be prima facie true."

The Court, therefore, held that it could not be a "mute spectator" as Dr PV Varavara Rao's health deteriorates again in government facilities.

"The condition of old age, sickness, infirmity and multiple health ailments suffered by the undertrial indicate that his continued custody would be incompatible with his health conditions and that sending him back to Taloja Central Prison would amount to endangering his life, thereby violating his fundamental right under Article 21 of the Constitution of India," the order read.

The bench held that a constitutional court can release an undertrial from custody on health grounds even if his bail application is pending on merits.

The court also significantly held that prisoners of an advanced age cannot be forced to live a subhuman existence behind bars, as the run the risk of their condition worsening in prison.

"The prisoners of advanced age like the undertrial, who is about 82 years old, and such other prisoners suffering from various health ailments induced by old age when put beyond bars, certainly face the danger of their health conditions worsening and accelerating their journey towards the end of their life," adding that this aspect must be considered if the accused ought to be released from custody. "The onset of old age and concomitant debilitating effect on the mental and physical conditions is an aspect which assumes great significance in the context of keeping such old aged persons behind bars."

The court rejected the National Investigating Agency's arguments that this expansion of rights under Article 21 of the Constitution of India would lead to a deluge of petitions for release before the already over burdened HCs.

"Merely because there is a possibility of filing of petitions under Article 226 of the Constitution of India for release of prisoners from custody on health grounds, it cannot be said that this court ought not to consider cases where such grounds are genuinely made out," the order read.

Eighty one year old Rao is incarcerated along with 15 other academics and civil rights activists in the Bhima Koregaon – Elgaar Parishad Case. He suffers from pre-existing health ailments like piles, prostate enlargement, coronary artery disease, Oedema/Anasarca (swelling of feet), Hypertension, Sinusitis, Migraine and Vertigo.

The court noted that Rao's medical reports show he is also suffering from cerebral atrophy, which can be age related, along with bouts of delirium induced by electrolyte imbalances. His lawyers had produced documents on to indicate a causal connection between cerebral atrophy and delirium leading to onset of dementia, it noted.

"There can be no doubt about the fact that a person in the health status of the undertrial would face acceleration and intensification of ailments if he continues to remain in custody." It held.

The bench relied on the apex court's judgement in the case Union of India v K.A. Najeeb where it was held that the rigours of provisions pertaining to grant of bail found in special statutes like the UAPA will melt down where there is no likelihood of the trial being completed within a reasonable time.

The bench was considering the application filed by Varavara Rao under Section 439 of the Code of Criminal Procedure seeking bail on medical grounds and also the writ petition filed by his wife Pendyala Hemalatha seeking his release on the ground that his continued incarceration was a violation of Article 21 on account of his health situation.

Some relevant observations from the judgment are as follows

" special circumstances, a Constitutional Court can certainly exercise its jurisdiction under Article 226 of the Constitution in favour of an accused in custody, even when regular bail application has been rejected on merits under the provisions of special statutes like Section 43D(5)of the UAPA".

"..the writ jurisdiction of this court under Article 226 of the Constitution cannot be said to have been ousted merely because the application for grant of bail has been rejected under Section 43D(5) of the UAPA, on a finding that the accusations against the under trial are found to be prima facie true"

"Even if an application for bail on merits of such undertrial is pending before this court, that would also not prevent exercise of writ jurisdiction by this court to consider releasing the undertrial from custody, subject to the undertrial making out a special case on the ground that his continued incarceration is incompatible with his health condition and that if an order is not issued for his release for some period on health grounds, it would amount to endangering his life"

Senior Advocates Indira Jaising and Anand Grover appeared for the petitioners.

Rao's Hospital visit Trajectory

Noting the trajectory of his hospital visits, the bench observed he suffered from deterioration of his health at the Taloja Central Prison in May, 2020 itself. He was then shifted to JJ Hospital but his medical reports were not brought on record.

The second time he was admitted to JJ Hospital in July, 2020 show Rao's health had deteriorated because of electrolyte imbalance and he was showing signs of delirium, the bench noted, adding Rao was bleeding from his rectum and was suffering from Urinary Tract Infection.

During this time, he also fell from the bed. Rao was then shifted to St George Hospital after he was found Covid-19 positive. The hospital recorded that Rao was suffering from delirium and perhaps dementia. As his health deteriorated further, the National Human Rights Commission intervened and Rao was shifted to Nanavati Super Speciality Hospital between July 19- August 27, 2020 .

He was treated for tremors and was showing signs of delirium at Nanavati Hospital, and doctors also began using a catheter due to his UTI. The court noted that Nanavati's doctors had given specific instructions for his close monitoring at the time of his abrupt discharge to Taloja Prison.

The court noted that the State hasn't disputed that there were only three Ayurvedic doctors at Taloja, no nursing staff and other undertrial prisoners were being asked to care for Rao.

Rao and his wife then approached the HC, in November 2020, seeking its urgent intervention after which he was admitted to Nanavati. It was found that at Taloja prison, his catheter was not changed for over three months. The bench noted that it was only after treatment and constant monitoring that Rao's condition improved.

"In view of the aforesaid material and sequence of events, we have come to the conclusion that sending the undertrial back to Taloja Central Prison would certainly endanger his life. In fact, continued custody of the undertrial at the Taloja Central Prison is wholly incompatible with his health condition, because the hospital at the Taloja Central Prison is not adequately equipped to take care of the undertrial, given his advanced age and various health conditions," the bench observed.

Stringent conditions imposed

The Court also observed that the release of Rao cannot be unconditional as he stands accused of serious offences under UAPA and IPC.

"It is an admitted position that as per the accusations levelled against the undertrial and the material placed along with the charge-sheet, the undertrial is accused of being a senior member of the banned organization Communist Party of India (Maoist).It is an organization which believes in violence and overthrow of the Constitutionally and legally established Government. The material on record, including letters and communications exchanged between the co-accused prima facie show that there is reference to the undertrial, indicating that he had facilitated financing of such violent activities. The said material, subject to proof and proceedings before the trial court, indicates that the undertrial was also involved in providing arms and ammunition for illegal and nefarious activities", the bench observed.

The bench imposed a condition that octogenarian Rao should not make any public statements related to the proceeding and should not establish connection with co-accused. Also, Rao has to remain within the jurisdiction of Special NIA Court, Mumbai. The bench observed that allowing Rao to go back to where he belongs(Hyderabad) is "fraught with risk".

The other conditions are :

  • He should provide his contact number and the numbers of his relatives residing with him.
  • He must attend the court as and when he is summoned. He can, however, apply for exemption.
  • Rao must also attend the police station through watsapp video call fortnightly.

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