At, High Court of Karnataka
By, THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA & THE HONOURABLE MS. JUSTICE J.M. KHAZI
For the Petitioner: H.N. Divyatej, Rahamathulla Kothwal, Advocates. For the Respondents: V.S. Hegde, SPP-II.
(Prayer: This WPHC is filed under Articles 226 and 227 of the Constitution of India with a prayer to issue a writ in the nature of Habeas Corpus ordering the immediate release of the petitioner's mother namely Smt. Asha Parekh (CTP No.12131) who is illegally placed under confinement by the respondent Nos. 1 and 2 prison authorities and etc.)
B.V. Nagarathna, J.
1. Learned SPP-II has filed the affidavit of respondent No. 2 - Dr. Ranganath P., working as Chief Superintendent of Central Prison, Bengaluru, Parappana Agrahara, Electronic City Post, Bengaluru - 560 100, enclosing two documents after serving a copy of the same on the learned counsel for petitioner.
2. On perusal of the same petitioner's counsel drew our attention to the fact that in Annexure R-1 Dr. Uma M., Chief Medical Officer, Central Prison Hospital, Central Prison, Bengaluru - 560 100, has categorically opined as under:
"Currently, she complains of continuous and on-going severe low back pain radiating to both the legs i.e., Sciatica radiating pain along with numbness in both her feet due to which she is finding difficulty in sitting and squatting down and sleeping on the floor and standing for a long time. Thus, she is unable to carry out her activities of daily living independently. Since the time of her Judicial Custody she has been placed in prison hospital along with providing the basic health care and facilities. However, we are unable to provide regular physiotherapy due to lack of facilities. She has to undergo major surgery L5 to S1 Decompression and Discectomy with TILF recommended by the treating orthopedician Dr. Anil Patil for her persisting disease condition. There are no facilities for the said surgery at Central Prison Hospital, Bengaluru. The treating doctor also has recommended rest for a period of three months following the surgery."
3. Learned counsel for petitioner submitted that in view of the report at Annexure-R-1 stating that Smt. Asha P. Parekh, in respect of whom this petition has been filed, has to undergo major surgery a direction may be issued to the respondents to release her so that the petitioner could make arrangements for her medical treatment including surgery. He submitted that in Annexure R-2 also the aforesaid contents are noted. Learned counsel for petitioner submitted that despite the aforesaid medical opinion the respondents have not taken steps for the release of Smt. Asha P. Parekh who is undergoing sentence in the central prison. Hence, this petition has been filed.
4. Learned SPP-II submitted that the petitioner herein who is the son of Smt. Asha P. Parekh, has not taken steps under the provisions of the Karnataka Prison Rules, 1974 (for the sake of brevity hereinafter referred to as the `Rules') for seeking release of his mother as it is his case that she is ill. Had an application being made under the provisions of the Rules the same would have been considered and appropriate treatment would have been accorded to her. Instead, the petitioner has simply filed this writ petition of Habeas Corpus bypassing the procedure laid down under the Rules. In the circumstances Smt. Asha P. Parekh cannot simply be handed over to the petitioner as she is not under illegal detention but in detention pursuant to her conviction in Special C.C. No. 187/2000 by judgment dated 30.03.2010 passed by XXI Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bangalore which has been affirmed by the Hon'ble Supreme Court.
5. By way of response, learned counsel for petitioner drew our attention to the representation of Smt. Asha P. Parekh dated 10.03.2021, a copy of which is produced as Annexure D and typed copy as Annexure D-1. He submitted that the respondent jail authorities have not taken any steps to consider the said representation and accord her medical treatment despite the opinion of the prison Doctor.
6. In the circumstances we observe that the said representation dated 10.03.2021 made by Smt. Asha P. Parekh be construed as a representation under Rule 68/69 of the Karnataka Prison Rules, 1974 and the same may be considered having regard to Rules 70 and 71 of the said Rules and an appropriate decision be taken with regard to according medical treatment to Smt. Asha P. Parekh. The said decision shall be taken on or before 24.04.2021. Before taking the said decision the petitioner, who is the son of Smt. Asha P. Parekh also be heard in the matter as in case she requires surgery and the same is to be conducted in any private hospital, suggestions to be made by the petitioner for her admission in a private hospital would also be taken into consideration and reference to the said private hospital could be made by the concerned Chief Medical Officer of Central Prison, Bengaluru in accordance with the extant norms. For that purpose the petitioner to appear before respondent No. 2 on 21.04.2021 at 03.00 pm. Decision to be taken with regard to the medical treatment to be accorded to Smt. Asha P. Parekh shall be communicated to the petitioner. In case steps are to be taken for her treatment in any private hospital, all safeguards that are necessary including an undertaking etc., by the petitioner shall be given including furnishing of security and other conditions to be imposed by respondent No. 2 shall be complied with by the petitioner. It is needless to observe that in the event of any surgery is to be performed on Smt. Asha P. Parekh, post surgery procedures and compliances shall also
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be made. 7. We have issued the aforesaid directions having regard to the mandate of Article 21 of the Constitution including right to medical assistance of a prisoner undergoing sentence in a jail and in exercise of our judicial discretion under Article 226 of the Constitution of India. Hence, submissions on maintainability of this petition which has been raised by the Registry as such have not been heard. 8. The writ petition is disposed of with the aforesaid observations and directions. 9. In view of the disposal of this writ petition removal of office objections stands waived.