STATE OF U.P.versusGAYATRI PRASAD PRAJAPATI

                         [2020] 7 S.C.R. 959                             959


                          STATE OF U.P.                                  A
                                  v.
                 GAYATRI PRASAD PRAJAPATI
                 (Criminal Appeal No. 686 of 2020)
                        OCTOBER 15, 2020                                 B
      [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                 M. R. SHAH, JJ.]
       Bail: Interim bail granted on medical grounds – Respondent
was a former minister and accused for offence u/ss.376D/376/511/
                                                                         C
504/506 r/w s.3/4 of POCSO Act – His bail was rejected – He was
admitted for treatment in hospital (K.G.M.U.) and remained admitted
from 3.5.2019 to 17.1.2020 – On 9.3.2020, he was again admitted
in K.G.M.U. – On 4.6.2020, he was shifted to super specialty
hospital (S.G.P.G.I.M.S.) – Medical Board evaluated the condition
of respondent and submitted report – On 29.6.2020, respondent            D
was again shifted back to K.G.M.U. – On 3.9.2020, High Court by
impugned order allowed the interim bail on medical grounds for a
period of two months – Appeal by the State – Held: It is clear that
on 3.5.2019, respondent was admitted in K.G.M.U. and was
discharged after more than seven months – He was advised taking
                                                                         E
of tablets, follow up review in Urology OPD and was discharged
on his stable condition – The report of Medical Board constituted
under the orders of High Court was that there was no major disparity
in the treatment of patient from both the hospitals and considering
the medical reports, he can continue treatment at jail hospital –
Before the High Court, an affidavit was filed by the State bringing      F
on record medical treatment report of S.G.P.G.I.M.S. which stated
that the super specialty hospital offer unmatchable and
unsurpassable medical expertise in numerous field and patients from
far off places come to S.G.P.G.I.M.S. for availing specialised medical
treatment – The report of the S.G.P.G.I.M.S., as well as report of the
                                                                         G
medical board which were brought in the notice of the High Court,
were neither considered nor referred to by the High Court in the
impugned order – When the respondent was being given treatment
in S.G.P.G.I.M.S. as recommended by K.G.M.U., there did not appear
to be any shortcomings in the medical treatment offered to
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                                 959
960             SUPREME COURT REPORTS                           [2020] 7 S.C.R.


A     respondent, which could have been the basis for grant of interim
      bail on medical ground – There was no satisfaction recorded by
      High Court that treatment offered to respondent was not adequate
      and he required any further treatment by any particular medical
      institute for which it was necessary to release the respondent on
      interim bail on medical grounds – Further, as per condition
B
      mentioned in interim order, the High Court contemplated that
      respondent shall ordinarily reside at a place of residence, as assured,
      far from the place of residence of the prosecutrix and her immediate
      family, thus, the contemplation was that respondent shall reside at
      his residence – High Court, without considering the entire materials
C     on record, passed the impugned order which is unsustainable.
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      686 of 2020.
            From the Judgment and Order dated 03.09.2020 of the High Court
      of Judicature at Allahabad, Lucknow Bench, Lucknow in Bail No. 5743
D     of 2019.
            S.V. Raju, ASG, Dr. Rajeev Dhawan, Sr. Adv., Ms. Garima
      Prashad, Abhinav Agarwal, Ms. Sairica S. Raju, A. Venkatesh, Guntur
      Pramod Kumar, Ms. Rukhmini Bobde, Aviral Kapoor, Ms. Riya Dhingra,
      Avinash, Vishal Prasad, Advs. for the appearing parties.
E
            The Order of the Court was passed by
            ASHOK BHUSHAN, J.
            1. Leave granted.
             2. This appeal has been filed questioning the order dated 03.09.2020
F
      passed by Allahabad High Court, Lucknow Bench, Lucknow, by which
      the respondent has been granted interim bail on medical grounds for a
      period of two months while directing listing of the regular Bail Application
      No. 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:-
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            3.1    The respondent, a former minister in the State of U.P. is an
                   accused in case Crime No.29 of 2017 under Sections
                   376(D)/376/511/ 504/506 of I.P.C. read with Sections 3/4
                   of POCSO Act, Police Station Gautam Palli, District
                   Lucknow.
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 STATE OF U.P. v. GAYATRI PRASAD PRAJAPATI                             961
           [ASHOK BHUSHAN, J.]

3.2   The first information report was registered against the          A
      respondent after an order was passed by this Court on
      17.02.2017 in a Writ Petition (Crl.) No. 160 of 2016 filed by
      the complainant. The respondent was granted bail by the
      Additional District and Sessions Judge, Lucknow vide order
      dated 25.04.2017, which bail was cancelled before the
      respondent could be released from the jail by the High Court     B
      vide its order dated 26.05.2017 on an application filed by
      the State of U.P.
3.3   Another Bail Application No.10101 of 2017 filed by the
      respondent was again rejected by the High Court by order
      dated 14.12.2017.                                                C

3.4   The respondent was admitted for treatment in King George
      Medical University, Lucknow (hereinafter referred to as
      “K.G.M.U.”) on 03.05.2019. The respondent moved a Bail
      Application No.5743 of 2019 before the High Court. An
      application C.M. Case No. 99240 of 2019 was filed by the         D
      respondent on 19.08.2019 seeking interim bail on medical
      grounds for a period of six months. The respondent remained
      admitted in K.G.M.U. from 03.05.2019 to 17.01.2020 when
      he was discharged. The High Court passed an order on
      05.03.2020 while hearing the bail application as well as short   E
      term bail application providing that applicant be sent to the
      Department of Urology of K.G.M.U., Lucknow, where he
      should be examined/admitted as per opinion of doctor
      concerned. However, the admission/treatment of the
      applicant-accused shall be under the supervision of police
      authorities/team to be constituted by the concerned              F
      authority.
3.5   The High Court further directed that applicant-accused may
      be examined by a medical board to be constituted by the
      Vice-Chancellor, K.G.M.U., Lucknow and the said report
      may be placed before the Court.                                  G
3.6   On 09.03.2020, the respondent was again admitted in
      K.G.M.U. The respondent was shifted on 04.06.2020 to
      the Sanjay Gandhi Postgraduate Institute of Medical
      Sciences, Lucknow (hereinafter referred to as
      “S.G.P.G.I.M.S.”) for specialised treatment, S.G.P.G.I.M.S.      H
962             SUPREME COURT REPORTS                            [2020] 7 S.C.R.


A                   being multi super-speciality (a tertiary medical care super-
                    speciality hospital). The medical board evaluated the
                    respondent and submitted the report on 10.06.2020. An
                    affidavit was also filed before the High Court regarding the
                    medical 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 to
B
                    K.G.M.U. The High Court by impugned order dated
                    03.09.2020 allowed the interim bail application of the
                    applicant on medical grounds.
            3.7    The State of U.P. aggrieved by the order dated 03.09.2020
                   has come up in this appeal.
C
            4. We have heard Shri S.V. Raju, learned Additional Solicitor
      General for the appellant. Dr. Rajeev Dhawan, learned senior counsel
      has appeared for the respondent.
              5. Learned ASG for the appellant submits that the respondent
D     was given due treatment in the K.G.M.U. as well as in the super-speciality
      hospital (S.G.P.G.I.M.S.). Relevant reports including the report of medical
      board was placed before the High Court reflecting on the medical
      condition of the applicant and the treatment being given. The High Court
      while passing the impugned order did not refer to reports of the medical
      board, which was submitted pursuant to the order of the High Court and
E     reliance was placed on the report of Senior Superintendant of District
      Jail as well as on the medical opinion of Department of Urology of
      K.G.M.U. dated 17.01.2020. The subsequent materials, which were on
      the record including the report of medical board had not been adverted
      to or considered while passing the impugned order. The appellant’s
F     medical condition being under control due to treatment given in aforesaid
      medical institutions, there was no occasion to release the respondent on
      interim bail. The respondent has been, for the most of the period in last
      one year, in the hospital alone. He submits that under one of the conditions
      of interim bail [paragraph 27 (ii)], the respondent shall ordinarily reside
      at a place of residence, which indicates that the respondent is to ordinarily
G     reside at his residence and not for any medical emergency. Shri Raju
      has also referred to Clinical Summary dated 09.09.2020 of Department
      of Urology, K.G. Medical University, Lucknow, which has been brought
      on record by the respondent himself as well as letter dated 05.10.2020
      of the Department of Urology, K.G. Medical University, which indicate
H     that the respondent has been advised to take tablets and it is also
        STATE OF U.P. v. GAYATRI PRASAD PRAJAPATI                                963
                  [ASHOK BHUSHAN, J.]

mentioned that he can take treatment from any super-speciality hospital          A
in the country. By subsequent letter dated 05.10.2020, he has been asked
to go to S.G.P.G.I.M.S., Lucknow, Neurology Department for NCV
testing. Shri Raju submits that the State is providing full medical facilities
and treatment to the respondent and the High Court has erred in granting
interim bail on medical ground without adverting to the medical reports
                                                                                 B
submitted by the K.G.M.U. and S.G.P.G.I.M.S.
       6. Dr. Rajeev Dhawan, learned senior counsel appearing for the
respondent refuting the submission of the learned ASG for the appellant
contends that even if the offence alleged against the respondent is a
serious offence and respondent may have political linkage but at present
we are not looking at the nature of offence. When a person is ill and he         C
is under prison, he requires a humane treatment. An accused cannot be
given a different treatment. The respondent was being moved from one
hospital to another hospital, which was not by his own choice. He has
referred to the report of K.G.M.U., Clinical Summary dated 04.06.2020
wherein it has been mentioned that patient has been referred to                  D
S.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 has
been referred to in which K.G.M.U. has observed that since NCV testing
is not available in K.G.M.U., the patient is being referred to Neurology
Department of S.G.P.G.I.M.S., for the same. Dr. Dhawan submits that              E
at present, the respondent is in K.G.M.U. Dr. Dhawan further submits
that the respondent be permitted to continue at K.G.M.U. and should not
be transferred to jail.
      7. We have considered the submissions of the learned counsel for
the parties and have perused the records.                                        F

       8. In the present appeal, our consideration is confined only to the
interim bail, which has been granted to the respondent by order dated
03.09.2020. The Bail Application No. 5743 of 2019 being still pending in
the High Court, our considerations and observations are only with respect
to order granting interim bail and shall have no bearing on the merits of        G
the bail application, which is pending consideration before the High Court.
       9. From the facts of the case, as noted above, it is clear that on
03.05.2019, the respondent was admitted in K.G.M.U. and after more
than seven months discharged on 17.01.2020. The provisional diagnosis
as mentioned in the Clinical Summary is as follows:-                             H
964            SUPREME COURT REPORTS                          [2020] 7 S.C.R.


A           “Provisional Diagnosis : UTI with DM with HTN with Bamboo
            spine with seronegative Spondylorthropathy.”
            10. The respondent was advised taking of tablets, follow up review
      in Urology OPD on every Monday and was discharged on stable condition
      on 17.01.2020. Under the orders of the High Court, the medical board
B     was constituted by Chief Medical Officer. The medical board report
      dated 10.06.2020 has been brought on record, the medical board report
      dated 10.06.2020 states:-
            “To,
            Chief Medical Officer,
C           Lucknow, Uttar Pradesh.
            Respected Sir,
            With reference to letter number eqo fpo vo /2o19/6o72-5 dated
      08/08/2020 and instructions from Director, Dr. RML Institute of Medical
D     Sciences, Lucknow, UP, we were nominated as members of medical
      board under the chairmanship of C.M.O. Lucknow. After closely going
      through the medical records of Mr. Gayatri Prajapati aged 54 years,
      male from district jail hospital, Lucknow and King George’s Medical
      University, Lucknow the following observations were made:-
            1. The patient is suffering from type-2 diabetes mellitus, benign
E
               prostate enlargement, renal dysfunction, low back pain related
               to seronegative spondylorthropathy.
            2. There is no major disparity in the treatment of the patient from
               both the hospitals and considering the current reports, patient
               can continue treatment at jail hospital but in view of renal
F
               dysfunction and seronagative spondylorthropathy, consultation
               from nephrologist and orthopedician is advisable.
            3. Patient needs control of blood sugar under supervision of
               endocrinologist.”
G            11. Before the High Court, an affidavit was also filed by the State
      dated 12.06.2020 bringing on record medical treatment report of
      S.G.P.G.I.M.S. The affidavit clearly stated that S.G.P.G.I.M.S., Lucknow
      offers unmatchable and unsurpassable medical expertise in numerous
      field and patients from far off places come to S.G.P.G.I.M.S., Lucknow
      for availing specialised medical treatment.
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        STATE OF U.P. v. GAYATRI PRASAD PRAJAPATI                                965
                  [ASHOK BHUSHAN, J.]

       12. The High Court by the impugned order dated 03.09.2020 has             A
directed for release of the respondent on medical grounds, although the
order runs in 23 pages but it is the paragraph 27 of the judgment, which
gives the reasoning for grant of interim bail. Paragraph 27 is as follows:-
      “27. Having considered the facts and circumstances of the present
      case and the applicant’s medical condition, which is confirmed by          B
      the medical status report, it shows that the applicant is suffering
      from disease i.e. UTI with Diabetes mellitus with HTN with
      Bamboo spine with seronegative Spondylorthropathy; proper
      treatment is not available in K.G.M.U. Hospital, Lucknow and
      doctors have advised proper treatment from multiple super
      specialties, at a tertiary care super specialty hospital; further threat   C
      to the applicant’s health in the prevailing times of Covid-19
      pandemic is real and imminent; and in view of the assurances
      extended on behalf of the applicant that he shall not apprehend or
      influence the prosecutix and her family members, this Court is
      persuaded to grant the applicant, Gayatri Prasad Prajapati, interim        D
      bail for a period of two months from the date of his release, subject
      to the following conditions:
                              XXXXXXXXXXXX
      (ii) The applicant shall not leave the country without prior permission
      of the trial court and shall ordinarily reside at a place of residence,    E
      as assured, far from the place of residence of the prosecutrix and
      her immediate family; and the complete address of such place
      shall be furnished to the Jail Superintendent at the time of release;
                            XXXXXXXXXXXXX”
                                                                                 F
      13. The High Court in its judgment relies on following:-
      (a) Applicant’s medical condition, which is affirmed by medical
          status report showing that applicant is suffering from disease,
          i.e., UTI with Diabetes mellitus with HTN with Bamboo spine
          with seronegative Spondylorthropathy;
                                                                                 G
      (b) Proper treatment is not available in K.G.M.U., Lucknow;
      (c) Doctors have advised proper treatment from multiple super
          specialities, at a tertiary care super speciality hospital; and
      (d) Threat to the applicant’s health in the prevailing times of
          COVID-19 pandemic is real and imminent.                                H
966             SUPREME COURT REPORTS                            [2020] 7 S.C.R.


A           14. The medical condition of the respondent, the treatment given
      and various reports including the report of medical board were on the
      record. The S.G.P.G.I.M.S. is a super-speciality hospital where the
      respondent has been referred for specified purposes and report of
      S.G.P.G.I.M.S. has also been brought on the record as Annexure P-10
      alongwith the letter dated 10.06.2020 addressed to Chief Medical
B
      Superintendant, S.G.P.G.I.M.S., Lucknow. The medical report of the
      respondent dated 10.06.2020 in final evaluation states:-
            “Final Evaluation
            Glycemia : better controlled
C           Hypertension : 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-speciality
D     hospital, which was on the record as well as report of the medical board
      dated 10.06.2020, which was brought in the notice of the High Court
      have neither been considered nor referred to by the High Court in the
      impugned order. When the respondent was being given treatment in the
      super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by
      K.G.M.U., we fail to see as to what were the shortcomings in the medical
E
      treatment offered to respondent, which could have been the basis for
      grant of interim bail on medical ground. Further, as per condition (ii)
      mentioned in paragraph 27, the High Court contemplated that respondent
      shall ordinarily reside at a place of residence, as assured, far from the
      place of residence of the prosecutrix and her immediate family, thus, the
F     contemplation was that respondent shall reside at his residence. There
      was no satisfaction recorded by the High Court that treatment offered
      to respondent was not adequate and he requires any further treatment
      by any particular medical institute for which it is necessary to release
      the respondent on interim bail on medical grounds.
G           16. Dr. Dhawan submits that every person, who is accused of an
      offence, even if the offence is a serious offence, requires a humane
      treatment by the prison authorities. There can be no two views with
      regard to above. Humane treatment to all including an accused is
      requirement of law. Furthermore, a prisoner, who is suffering from an
      ailment, has to be given due treatment and care while in prison.
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         STATE OF U.P. v. GAYATRI PRASAD PRAJAPATI                            967
                   [ASHOK BHUSHAN, J.]

     17. Learned counsel for both the parties have referred to Clinical       A
Summary dated 09.09.2020 as well as the letter dated 05.10.2020 of
K.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 the
respondent, which is apparent from the additional documents filed as
Annexure A-2 and Annexure A-3 alongwith the application dated                 B
10.10.2020. The High Court, without considering the entire materials on
record, has passed the impugned order dated 03.09.2020, which is
unsustainable.
       19. In result, we allow this appeal, set aside the order dated
03.09.2020. We may again make it clear that observations made by us in        C
this order are only for deciding this appeal and shall have no bearing on
the merits of the Bail Application No.5743 of 2019, which is still pending
before the High Court for consideration.


Devika Gujral                                               Appeal allowed.   D




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