By Satyaki Chakraborty
The Bombay High Court order on Monday granting six months medical bail to the 82 year old poet and Bhima Koregaon case accused Dr. P V Varavara Rao, is set to have a big impact on the other accused in the same case who have been languishing in jail for the last two and half years.
Dr. Varavara who was seriously ill tried earlier also to get bail on medical ground but the courts did not grant that, but this time, the Bombay High Court granted six months bail on the grounds of quality medical treatment. The other accused in the same case including veteran human rights lawyer Sudha Bharadwaj, have also medical history and they have already submitted all the necessary medical documents in the designated court, but they have not been granted bail till now. Today’s judgment has strengthened the hands of the concerned lawyers of the accused to fight for their bail in the respective lower courts.
A division bench of Justice SS Shinde and Manish Pitale said it would have abdicated its duty in protecting his fundamental rights if it had denied bail to the ailing Telugu poet.
“With all humility at our command, keeping in view human consideration, the well recognized fundamental rights of the undertrial to have quality medical aid for serious ailments suffered by him, advanced age, inadequate facilities in the hospital attached to the Taloja Central Prison, we are of the opinion that this is a genuine and fit case to grant relief; or else, we will be abdicating our constitutional duty and function as a protector of human rights and right to health covered under right to life guaranteed by Article 21 of the Constitution of India”, the bench said.
The bench mentioned that the condition of old age, sickness, infirmity and multiple health ailments suffered by Dr. Rao 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 Court also disapproved the stand taken by the National Investigation Agency that the accused was not entitled to any relief under humanitarian or for any other grounds keeping the gravity of the offence and its barring on the state. Dr. Rao is currently undergoing treatment in Nanavati Jail
The bench, however, imposed stringent conditions for him to follow while on bail. They are: Dr. Rao will not leave the jurisdiction of the Special NIA Court; will attend the NIA court whenever summoned; will deposit his passport; will not speak to the media about his case; will not tamper with evidence or influence witnesses.
After the pronouncement of the order, the Additional Solicitor General (ASG) for the National Investigation Agency (NIA) sought a stay of the order for three weeks, the court turned down the request and said when the Nanavati Hospital has not declared him fit to be discharged, it cannot send him to Taloja Central Prison for three weeks which would endanger his life.
The court was ruling on a plea filed by Pendyala Hemalatha, the wife of Dr Varavara Rao, alleging violation of the poet’s right to life, dignity and health on account of the ‘degrading’ and ‘inhumane’ treatment being meted out to him in Taloja jail. The plea made the point that the facilities available in Taloja jail are not adequate to take care of Dr. Rao’s medical requirements. Earlier also, Dr. Rao’s lawyers had to fight a bitter battle in the court in their plea to send Dr. Rao to the Nanavati hospital to which NIA and the govt lawyers continuously objected.
Both Senior Advocates Indira Jaising and Anand Grover representing Dr. Rao argued that considering Dr. Rao’s age, medical history, and multiple health complications, the prison atmosphere was absolutely not conducive to his mental and physical well-being, a fundamental right of every prisoner.
The NIA opposed the bail plea citing bar under Section 43-D (4) and (5) of the UAPA which provides that bail cannot be granted to an accused under the anti-terror statute if the prosecution makes out a prima facie case against the accused. While Jaising argued that the fundamental right to health of a prisoner could never be ousted by the shackles of Section 43(D)(5) of the UAPA, Grover’s contention was that the first proviso S. 437 (1) of the CrPC, was also not ousted by Section 43(D)(5) of the UAPA.
This forceful position made by the defence lawyers and its vindication in the Bombay High Court order has facilitated the process of moving such pleas on behalf of the other accused in the Bhima Koregaon case. At long last, there is some hope of the other accused also getting bail. (IPA service)