-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 371 OF 2008 WITH CRIMINAL APPEAL NO. 706 OF 2006 Rama @ Ramdas Ramchandra Gopal Ubale ) Aged about 30 years, Convict No. 14356, Circle No. 3/6 ) Yerwada Central Prison, Pune-6 )..Applicant (Orig. Accused) versus 1. State of Maharashtra (At the instance of Yervada Prison) ) 2. Chief Medical Officer, Yerwada Central Prison ) 3. In charge, Art Centre, Sasson Hospital, Pune ) 4. National Aids Control Organization, Mumbai )..Respondents Mr. Rajesh D. Bindra for the petitioner. Mr. Ravi Kadam, Advocate General, assisted by Mr. P.A. Pol, Public Prosecutor, for the State. Mr. Anand Grover, amicus curiae, present. Mr. Y.M. Chaudhary, amicus curiae, present. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. DATE: MARCH 08, 2010. P.C. In this matter, this Court is required to consider an important question as to the manner in which a prisoner who is lodged in jail may rescue himself from contracting HIV or any serious disease of such a nature and in case when a prisoner is suffering from such disease, what action the jail authorities and the State should take to see that the prisoner may get proper medical -2- treatment while in jail. 2. The present proceeding arises out of an application preferred by a prisoner viz. Rama @ Ramdas Ramchandra Gopal Ubale, who was convicted for an offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life by the IIIrd Additional Sessions Judge, Baramati, Dist. Pune, in Sessions Case No. 24 of 2004. The said accused challenged the conviction by way of an appeal being Criminal Appeal No. 706 of 2006. During the pendency of the appeal, the said convict preferred an application, through jail, stating that he is suffering from HIV and with a view to see that he may get proper medical facilities, he may be released on temporary bail. In view of the averments in the application that the applicant- prisoner was not getting proper medical facilities that this Court passed various orders from time to time. It is unfortunate that during the pendency of the said application, the said prisoner died. However, the proceedings have been kept pending by this Court with a view to see that appropriate directions can be given in connection with the treatment to be given to the prisoners who are suffering from HIV as well as with a view to see that in the State of Maharashtra adequate facilities are available in the jails regarding medical treatment. 3. Mr. Anand Grover and Mr. Y.M. Chaudhary, learned counsel were requested to assist the Court and both of them were appointed as amici curiae -3- by the order of this Court dated 5th September, 2008. This Court tried to find out the preventive measures adopted by the State Government in order to see that the prisoners in the jail may not contract HIV as well as to find out remedial measures as to how appropriate treatment can be given to a prisoner who is suffering from the said disease. As pointed our earlier, various orders have been passed by this Court from time to time. 4. On 2nd March, 2010, the Court was informed that the Government has sanctioned necessary funds for purchase of material and equipments for setting up laboratory and counselling centres at four Central prisons i.e. Thane, Nashik, Nagpur and Pune. However, since the learned Public Prosecutor could not point out as to whether the aforesaid centres have started functioning or not, the State Government was directed to give particulars in this behalf. 5. At the time of hearing today, the learned Advocate General appeared for the State and placed on record the affidavit filed by Medha Gadgil, Principal Secretary (Appeal & Security), Home Department, Mantralaya, Mumbai. Regarding setting up of Integrated Counselling and Testing Centres (ICTC)are concerned, it is pointed out in the affidavit that laboratories had been established at 4 centres viz. Pune, Nashik, Nagpur and Thane and the same were started functioning from the respective dates mentioned in Annexure-A to the said affidavit. As per the chart at Annexure-F to the said affidavit, 5 prisons -4- in the State are having full-fledged ICTC Centre facilities. As per the said chart, 22 prisons are having facility of ICTC Centres meaning thereby that even though full-fledged ICTC centres are not there at these prisons, it is having facility of ICTC Centres and the learned Advocate General has submitted that ICTC personnel are visiting these prisons once or twice a week. So far as remaining prisons are concerned, the learned Advocate General has submitted that the ICTC personnel may visit the remaining prisons in the State at least once a week. 6. Regarding appointment of the medical officers, it is pointed out in the affidavit that all the sanctioned vacant posts of the medical officers are now filled in except one. The particulars of the same are given in Annexure-B to the said affidavit. 7. In the affidavit, it is pointed out that there are 41 prisons in the State of Maharashtra and the sanctioned posts of Medical Officers are 38 for 21 prisons. The learned Advocate General has submitted that those prisons who do not have full-fledged medical facilities, a doctor may visit regularly to such prison from nearby prison where there are medical facilities or even from Primary Health Centres. In our view, medical officers should be made available to all the prisons in the State of Maharashtra. We recommend that the State may try to increase the sanctioned posts so as to see that every prison may have -5- sanctioned medical officers whose services can be utilised at the concerned prisons. The State may accordingly, in future, try to increase the strength of sanctioned posts. However, till each and every prison in the State is equipped with medical officers, the State is directed to see that a medical officer who is in charge of local dispensary may visit such prison where there are no medical officers regularly and at least thrice a week. In a given case if any requisition is made by the concerned prison authority then in such an eventuality such medical officers services should be immediately made available to the prison. If any requisition for a medical officer is received from the prison where full- fledged medical facilities are not there, a medical officer should be immediately sent on such requisition so that the ailing prisoners can get medical treatment without delay. This direction is given with a view to see that no jail is deprived of the benefit of medical assistance and the prisoners can get medical treatment in case any prisoner is sick. We hope that the State may also try to increase the sanctioned posts as indicated by us in the earlier part of this order. 8. So far as the recruitment of Laboratory Technicians are concerned, it is pointed out in the affidavit that there are 9 sanctioned posts of Laboratory Technicians out of which 7 posts are already filled in and for remaining two posts, the recruitment process was completed on 26th February, 2010. However, one candidate is selected, subject to medical test and police verification. An attempt should be made by the State to fill up one post of Laboratory Technician -6- latest by 31st July, 2010. 9. So far as the recruitment of compounders are concerned, it is stated in the affidavit that out of 37 posts, 26 posts were already filled in and for the remaining 11 posts, the recruitment process is already completed on 3rd March, 2010. An attempt should be made by the State to expedite the medical test and police verification and that process should be completed within a period of one month from today and appointment order be issued to the selected candidate immediately thereafter. 10. So far as the problems regarding HIV patients are concerned, it is stated in the affidavit that a circular dated 6th August, 2009 has been issued asking the police authorities to give police escort for the HIV patients on priority basis in order to see that such patients may get timely medical treatment. However, as pointed out earlier, 5 prisons in the State of Maharashtra are having ICTC centres and remaining 22 centres are having facilities of the same. The State is directed to strictly comply with the directions to the effect that for remaining centres where ICTC facilities are not available, the members of ICTC should regularly visit once in a week, as stated earlier. 11. During the course of hearing, it was suggested by Mr. Anand Grover, learned amicus curiae, that with a view to prevent spreading of HIV in the -7- prison, the prisoner should be provided with condom facilities. In our view, no such direction can be given in this behalf. At this stage, the learned Advocate General has stated that the State may frame guidelines in this behalf based on the guidelines issued by National Aids Control Organization, functioning at the Central Level. However, the learned Advocate General has submitted that a regular training programme is already given at various jails in the form of advertisement as well as documentary films with a view to educate the prisoners in connection with prevention of AIDS. The Government should regularly monitor this aspect and regular education should be imparted in the form of advertisement or by documentary films to see that the prisoners may be aware about the risk factor involved and may abstain themselves from committing such an act by which there are chances that they may contract AIDS. 12. It is also pointed out to the Court that the Government has framed statutory Rules on 6th September, 1972 under Section 59 of the Prisons Act, 1894. The Government has accordingly framed Rules viz. Maharashtra Prisons (Review of Sentences) Rules, 1972. Rule 27 of the said Rules provides that where a prisoner is suffering from illness, other than an acute infectious disease, of such nature or severity, that there is no hope of recovery, and it is considered desirable to allow him the comfort of dying out of prison, the Medical Officer shall send a certificate in Form X together with a detailed report of the case to the Superintendent. It further provides that where a Medical Officer considers -8- that any prisoner is in danger of death from illness other than acute infectious disease and that the illness will be aggravated by keeping him in the prison, and that the prisoner’s release is desirable, he shall send a certificate to that effect together, with a detailed report of the case to the Superintendent and the Superintendent on receipt of the certificate is required to address the prisoner’s relatives or friends, if any, and ascertain from them whether they are willing to look after the prisoner and if they are willing, on executing a security bond to the effect that they shall hand over the prisoner committed to their care to the Superintendent at any time required by the Superintendent. In our view, in a case where a prisoner is suffering from serious disease and when there is no chance of recovery and when it is considered that it is desirable that such prisoner should die out of prison, the medical officer should issue a certificate in form X without delay. Attention of such Rules should be brought to all the officers in charge of prisons in the State of Maharashtra as well as to the Medical Officers so that these Rules can be appropriately followed in a given case. 13. The concerned Magistrate should also regularly inspect the concerned prison periodically at least once in a month in order to monitor whether the appropriate facilities are available and whether the patients are properly getting medical treatment at various prisons. We accordingly terminate these proceedings by recapitulating the aforesaid directions to the State i.e. -9- (i) ICTC personnel may visit the prisons in the State where regular ICTC facilities are not available at least once in a week; (ii) The State may try to increase the strength of sanctioned posts of Medical Officers in order to see that every person may have medical officers whose services can be utilised at the prisons. Till such time, the State is directed and see that a medical officer who is in charge of a local dispensary may visit such centre where there are no medical facilities regularly and at lease thrice a week; (iii) One post of Laboratory Technician be filled latest by 31st July, 2010; (iv) So far as the remaining 11 posts of compounders are concerned, the State Government is directed to expedite the appointment procedure within a period of one month from today; (vi) With a view to curb spreading of the AIDS in the jails, the State is directed to educate the prisoners by way of advertisement or by showing documentary films about the risk factor involved in it; (vii) Where a prisoner is suffering from serious disease, the procedure prescribed in Rule 27 of the Maharashtra Prisons (Review of Sentences) Rules, 1972 is required to be followed by the concerned authorities. This should be brought to the notice of the officers in charge of the various prisons in the State of Maharashtra as well as to the medical officers so that these Rules can be properly followed in a given case. -10- 14. Before parting with this matter, we would like to record our appreciation to Mr. Anand Grover and Mr. Y.M. Chaudhary, learned amici curiae, who have rendered valuable suggestions in the matter and spent their valuable time in assisting the Court in the present proceedings. 15. We must also note the way in which Smt. Media Gadgil, Principal Secretary (Appeal & Security), tried to take remedial measures in connection with the problems raised in this matter. The Court is informed that she has worked as a Project Director in the Maharashtra State AIDS Control Society between 9th October, 1998 and 14th June, 2001 and was instrumental for implementation of the HIV/AIDS Control programme throughout the State of Maharashtra. We hope that the concerned Secretary shall work with the same enthusiasim and zeal in connection with the aforesaid programme. 16. Subject to the directions hereinabove, it is not necessary to continue the proceedings further. To reiterate, an attempt should be made by the State to implement the aforesaid steps in order to see that such type of cases may not occur in future and in a given case Rule 27 which we have quoted above also can be resorted to. -11- 17. The Application is accordingly disposed of. Since the sole appellant has died, the appeal stands abated. Appeal is also accordingly disposed of. P. B. MAJMUDAR, J. R.G. KETKAR, J.