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BOMBAY HIGH COURT
S.S. Shinde and Manish Pitale, JJ.
Dr. P.V. Varavara Rao and Anr. – Appellants
versus
National Investigation Agency
and Ors. – Respondents
Criminal Appeal No.52 of 2021 (Criminal Appeal LDVC No.143 of 2020) along with Criminal Writ Petition No.63 of 2021 (Criminal Writ Petition (ST.) No.4869 of 2020) along with Criminal Writ Petition No.64 of 2021 (Criminal Writ Petition (ST.) No.6320 of 2020)
Decided on 22.2.2021
(A) Unlawful Activities (Prevention) Act 1967 – Section 43D(5) – Criminal Procedure Code, 1973 – Section 439 – National Investigation Agency Act, 2008 – Section 21(4) – Constitution of India – Article 21 – Bail – Urban Naxal – Dismissal of bail application filed on behalf of undertrial on the ground of old age and medical conditions – Ordinarily, an accused, who is either an undertrial or a convict, has to approach courts as specified in Cr.P.C. and special statutes like UAPA for grant of bail within four corners of conditions specified in such provisions – Accused usually exhaust hierarchy of courts while claiming that they need to be enlarged on bail – Such applications are made at various stages of criminal proceedings including applications made when investigation is underway or pending trial or post-conviction – Although, prisoners stand confined within prison and, to that extent, stand deprived of their liberty as per procedure established by law, it cannot be said that they cannot invoke myriad shades of rights guaranteed under Article 21 of the Constitution of India – Basic human rights cannot be denied to a person even though he remains confined in jail as per procedure established by law – Statutory restrictions like one found in Section 43D(5) of UAPA per-se do not oust ability of Constitutional Courts to grant bail on the ground of violation of Part III of Constitution of India. (Paras 37, 38, 39, 43 and 45)
(B) Constitution of India – Article 226 – Unlawful Activities (Prevention) Act 1967 – Section 43D(5) – Criminal Procedure Code, 1973 – Section 439 – National Investigation Agency Act, 2008 – Section 21(4) – Bail – Urban Naxal – Dismissal of bail application filed on behalf of undertrial on the ground of old age and medical conditions – Writ jurisdiction of High Court under Article 226 of Constitution cannot be said to have been ousted merely because application for grant of bail has been rejected under Section 43D(5) of UAPA, on a finding that accusations against the undertrial 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 undertrial from custody, subject to 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 – Respondents cannot be permitted to truncate such a right available to a prisoner on the plea that if such prayers were to be entertained by this court, it would lead to a deluge of petitions for release of inmates from jail on health grounds – Merely because there is possibility of filing of petitions under Article 226 of 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 – Onset of old age and concomitant debilitating effect on mental and physical conditions is an aspect which assumes great significance in context of keeping such old aged persons behind bars. (Paras 47, 48, 49 and 50)
(C) Criminal Procedure Code, 1973 – Section 439 – Constitution of India – Article 21 – Unlawful Activities (Prevention) Act 1967 – Section 43D(5) – National Investigation Agency Act, 2008 – Section 21(4) – Bail – Urban Naxal – Dismissal of bail application filed on behalf of undertrial on the ground of old age and medical conditions – Undertrial tested positive for Covid-19 virus and he had suffered fall from bed – Because of constant monitoring and treatment given at hospital, health condition of undertrial appears to have improved gradually – Medical reports show that there is a reference to dementia in respect of undertrial, due to bouts of delirium and cerebral atrophy – There is material placed on record on behalf of undertrial to indicate a causal connection between cerebral atrophy and delirium leading to onset of dementia – A person in health status of undertrial would face acceleration and intensification of ailments if he continues to remain in custody – Sending undertrial back to Prison would certainly endanger his life – Continued custody of undertrial at Prison is wholly incompatible with his health condition because hospital at Taloja Central Prison is not adequately equipped to take care of the undertrial, given his advanced age and various health conditions – It cannot be said that contentions raised on behalf of undertrial are based merely on unfounded apprehensions and that they cannot be considered for grant of bail to undertrial on the basis of his old age, sickness, infirmity and health conditions – This court, as a Constitutional Court, cannot be a mute spectator to undertrial being sent to prison and then to Government Hospitals where his health deteriorates further – Undertrial stands accused of serious offences under the UAPA as well as IPC, which if proved, can lead to imposition of death penalty or punishment of imprisonment for life – Bail granted against stern conditions. (Paras 57, 68, 73, 75, 80 to 92)
Result: Writ Petitions and Appeal disposed of with directions.
JUDGMENT
An appeal and two writ petitions have come up for consideration before this court for release of Dr. P.V. Varavara Rao, an accused and undertrial (hereinafter referred to as “the undertrial”) from custody, on the ground of his advanced age and precarious health condition.
2. The appeal being Criminal Appeal No.52 of 2021 has been filed under Section 21(4) of the National Investigation Agency Act, 2008 (for short, “the NIA Act”) to challenge order dated 26/06/2020 passed by the Court of Special Judge for Greater Mumbai (hereinafter referred to as “the NIA Court”) in NIA Special Case No. 414 of 2020, whereby a bail application filed on behalf of the undertrial on the ground of old age and medical conditions, stood dismissed.
3. Criminal Writ Petition No.63 of 2021 has been filed by the wife of the undertrial with prayers for declaration that the respondents have failed to provide appropriate medical treatment to the undertrial in custody, thereby violating his fundamental right to health, dignity and life guaranteed under Article 21 of the Constitution of India, apart from violating International Covenants pertaining to Human Rights and for a direction to the respondents to set the undertrial at liberty on such conditions that this court may deem fit. In the said writ petition, further prayers are also made for shifting the undertrial to Nanavati Hospital at Mumbai and appointing a Medical Board for assessing the medical condition of the undertrial.
4. Criminal Writ Petition No.64 of 2021 was filed by the undertrial himself seeking a direction to respondent No.2 to produce the entire medical reports and to send him for medical check-up and for appropriate treatment.
5. Since arguable questions have been raised in the appeal and in the writ petitions, the appeal is admitted and Rule is granted in the writ petitions, making it returnable forthwith. The appeal as well as the writ petitions were finally heard with the consent of learned counsel appearing for the rival parties.
Facts:
6. On 08/01/2018, a First Information Report (for short, “FIR”) bearing C.R. No.4 of 2018 was lodged at Vishrambaug Police Station, Pune City under Sections 153A, 505(1)(b), 117 and 34 of the Indian Penal Code (for short, “the IPC”) against six persons for speeches and songs performed at a meeting of Elgaar Parishad conducted on 31/12/2017. On 06/03/2018, Section 120-B of the IPC was added in the said FIR and the investigation was taken over by the A.C.P., Swargate Pune. The said official led a team and carried out raids at Pune and Mumbai on 17/04/2018, against the six accused persons named in the FIR and also against two suspected accused persons, one from Delhi and the other from Nagpur. Pursuant thereto, on 17/05/2018, Sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 (for short, “the UAPA”) were added to the said FIR against the aforesaid six accused persons as also the two suspected persons.
7. On 06/06/2018, the subsequently added two accused persons were arrested, leading to search of their residences and arrest of two more accused persons. On 28/08/2018, the undertrial was arrested from his home at Hyderabad but, following directions of the Hon’ble Supreme Court, issued in the case of Romila Thapar & Ors. v. Union of India, Judgment dated 28/09/2018 passed in Writ Petition (Criminal) No.260 of 2018, the undertrial and four other arrested persons were kept under house arrest.
8. On 15/11/2018, charge-sheet was filed against some of the accused persons and the undertrial was taken into police custody from house arrest and he was taken to Pune. On 31/01/2019, the undertrial and other co-accused persons were arrested in C.R. No.35 of 2016 for offences under the IPC, UAPA, Arms Act and the Bombay Police Act. They were produced before the Court of Judicial Magistrate, First Class, Aheri, Gadchiroli. Thereafter, on 21/02/2019, a supplementary charge-sheet was filed against the undertr
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