1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 312 OF 2010 (Bail Application) IN APPEAL NO. 180 OF 2010 Brian George Lamb @ Rekha ..Applicant/Accused Vs. The State of Maharashtra ..Respondent .... Ms. Anjali R.Waghmare Advocate for Applicant Mr. Rajesh More APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : 5th APRIL, 2010 P.C.: 1 The applicant has been convicted by the learned Additional Sessions Judge, Mumbai in Sessions Case No. 421 of 2007 for offences under Section 376(1) of IPC r.w. Section 109 of IPC and also under Sections 3, 4 and 5 of PITA Act, 1956. For the offence under Section 376(1) r.w. 109 of IPC, he is sentenced to suffer RI for seven years and also to pay a fine of Rs.5000/- i/d to suffer RI for three months. For the offence under Section 3 of PITA Act, 1956, he is sentenced to suffer RI for 3 years and to pay a fine of Rs.1000/- i/d to suffer RI for one month. For the offence under Section 4 of PITA Act, 1956, he is sentenced to 2 suffer RI for seven years and to pay a fine of Rs.1000/- i/d to suffer RI for two months. For the offence under Section 5 of PITA Act, he is sentenced to RI for ten years and to pay a fine of Rs.5000/- i/d to suffer RI for three months. 2 The applicant ’s appeal has been admitted. This is his application for bail. The applicant has prayed for bail on merits as well as on medical ground. 3 In short, the case against the applicant is that he had kidnapped two minor girls and subjected them to illicit intercourse with others. 4 The evidence of Investigating Officer PI Bhakhare (PW 9), Panch witness (PW 7) and fake customer (PW 6) indicates that when the premises of the applicant were raided two minor girls were found. The applicant was present. Both the girls stated that the applicant had called them for prostitution. The girls were examined as PW 2 and PW 3. They confirmed that the applicant was forcing girls to have sexual intercourse with others in his house. PW 2 identified accused 2 and stated that the applicant forced her to have sexual intercourse with him. 3 5 Having perused the evidence, we are of the considered opinion that bail cannot be granted to the applicant on merits, hence, that prayer is rejected. 6 Admittedly, the applicant is HIV positive. He has prayed that he may be released on bail because his CD-4 count is 67 and if CD-4 count is below 200, then, the person ’s health is critical, because he immediately requires ART treatment. To ascertain whether it is true, we had requested learned APP to call the Medical Officer from the Nasik Road Central Prison. Accordingly, Dr. Narendra V. Patil, the Medical Officer from Nasik Road Central Prison is present in the Court. He has confirmed that CD-4 count of the applicant is 67 and ART treatment is being given to him. Learned APP on instructions from Dr. Narendra V. Patil, submitted that Nasik Road Central Prison has a prison hospital where the applicant is being treated. Since the applicant ’s CD-4 count is 67 and he is being given ART treatment, he needs proper diet and that diet is being given to him. He gave us a list of food items which are given to the applicant. We are satisfied that Nasik Road Central Prison is giving high protein diet to the applicant. Ordinarily, therefore, we would not have shifted the applicant from Nasik Road Central Prison. 4 However, the applicant ’s grievance is that he is being discriminated. The other prisoners are not friendly with him. They do not allow him to mix with them. He has, therefore, to stay in one room. The applicant is on furlough and therefore, he is present in the Court. Through his lawyer, he informed us that he is under depression. He has therefore, prayed that he may be shifted to Thane Central Prison from Nasik Road Central Prison. He feels that he will get proper treatment at Thane Central Prison and the atmosphere may also be friendly. 7 At this stage, it is necessary to note that the applicant is a eunuch and that is the reason why the other prisoners of Nasik Road Central Prison do not want him to mix with them. We are informed that at Thane Central Prison, HIV positive undertrial prisoners are kept in a separate cell. The Jailor of Thane Central Prison Mr.Y.S.Shaikh, Jail Group-II, is present in the Court. He states that if the applicant is transfered to Thane Central Prison, he would be lodged in a room near the room in which two undertrials who are also eunuchs are lodged. We feel that the grievance of the applicant can be met if the applicant is kept in a room next to the room in which two undertrial eunuchs are kept. 5 8 At this stage, we think it appropriate to make a reference to the judgment of this Court in Criminal Application No. 371 of 2008 with Criminal Appeal No. 706 of 2006 (Rama @ Ramdas Ramchandra Gopal Ubale Vs. State of Maharashtra and others) decided on 8th March, 2010. In that case, the Division Bench of this Court was inter alia considering the question as to how the prisoners suffering from HIV positive should be medically treated in a prison. This Court laid down exhaustive guidelines in paragraph 13 of the said judgment. We would expect all prisons particularly in the present context, Thane Central Prison to follow the said guidelines. It is also necessary to consider the larger issue as to what arrangements should be made for the prisoners belonging to the applicant ’s category in the prisons, because, we have noticed that in this case, the other prisoners are avoiding him. Some arrangement needs to be made to meet such a situation. 9 In the circumstances, we direct that the applicant Brian George Lamb @ Rekha be transferred from Nasik Road Central Prison to Thane Central Prison. Thane Central Prison shall ensure that the applicant is looked after properly and all necessary medical treatment is given to him and high protein diet is provided to him. Thane Central 6 Prison is also directed to periodically conduct the medical tests of the applicant to ascertain his CD-4 count and shall ensure that if necessary, he shall be admitted in a Civil Hospital for further medical treatment. His entire medical record be transferred to Thane Central Prison. 10 Application is disposed of. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]