Hon'ble MISHRA, CJ.—The intra-court appeal has been preferred as against the order dated 18th March, 2008 passed by the Single Bench whereby the writ application of the appellant was partly allowed and the petitioner was permitted to be treated in judicial custody at SMS Hospital, Jaipur for the diseases which have been diagnosed by the specialist doctors. The State Government was also directed to frame suitable guidelines for medical treatment of the under-trial/convict prisoners within a period of three months.

2. Brief facts of the case are that the appellant-petitioner was arrested during the course of investigation in FIR No.146/2003 registered at Police Station Vidhyadhar Nagar, Jaipur and since 7.6.2003 he is in judicial custody. The allegations against the petitioner relate to commission of offences under Sections 401, 411 & 413 IPC and Sections 5/25(1) and 14/25(2) of the Antiquities and Art Treasurers Act. Apart from the above case, many criminal cases are pending against the petitioner before various courts in the State of Rajasthan. The petitioner has been medically examined from time to time by jail doctors or the doctors of SMS Hospital, Jaipur and he was found to be suffering from various diseases like inguinal hernia, hiatus hernia, inflammation of gall bladder, enlarged prostate, dental etc. When the proper treatment was not given to the petitioner, he filed S.B. Civil Writ Petition No.6894/2003 and while disposing of the said writ petition vide order dated 19.11.2003, the Single Bench directed the respondents to take assistance of a specialist from a Government hospital in the department of Gastroentrology or if necessary a team of specialists who can visit the petitioner in jail and assess about his ailment and his health condition. Thereafter, the petitioner moved an application on 30.11.2006 before the trial court under sections 167 and 309 Cr.P.C. praying therein that the order of the High Court be complied with and the trial court observed that under the aforesaid provisions of law, it has no power to make available special medical treatment to the under trial prisoners. As regards the non-compliance of the order of the High Court, the trial court observed that the petitioner is free to move an application before the High Court.

3. Subsequently, the petitioner was examined on 16.6.2007 and it was found that he is suffering from enlarged prostate. He was again examined on 6.12.2007 and it was found that he was also suffering from inflammation of the gall bladder and hernia. The petitioner was also advised to go for dental check up. on 24.2.2007, the Additional Sessions Judge (Fast Track) No.l, Jaipur observed that he had no right to determine as to the place of the treatment of an under trial prisoner and it is for the jail authorities to decide the matter. It was further submitted that the jail authorities were grossly negligent in providing medical treatment to the petitioner and referred him to the SMS Hospital, Jaipur but he did not agree for the surgery of hernia in SMS Hospital, Jaipur as there is no proper medical/nursing care in SMS Hospital. According to petitioner, he was denied fundamental right to proper and adequate medical treatment during his custody without just cause and denial of proper medical treatment in custody is arbitrary and unreasonable exercise on the part of the jail authorities-respondents. Hence, the writ application was filed contending inter-alia that the petitioner has a fundamental right under Article 21 of the "Constitution of India to be treated by the doctor of his own choice at his own expenses and not allowing the petitioner to get himself treated by the doctor of his own choice at his own expenses is violative of Article 21 and for that, reliance was placed on the judgments of the Apex court in Nilabati Behera (Smt.) @ Lalita Behera vs. State of Orissa and Ors. ((1993) 2 SCC 746), D.K. Basu vs. State of W.B. ((1997) 1 SCC 416) and Bibhuti Nath Jha vs. State of Bihar (

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