IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3576 of 2010 JITENDRA SWAMI Versus THE STATE OF BIHAR For the petitioner: Shri Shakeel Ahmad Khan, Sr. Advocate For the State: Shri D.K.Sinha, A.P.P. For the informant: Shri Akhileshwar Pd.Singh, Advocate ----------- 5. 25.8.2010 The petitioner has filed a supplementary affidavit and it appears from the copy of order, Annexure-20 to it as also from different heads of charges which appear from pages 29 to 32 of the supplementary affidavit dated 24.8.2010, that charges under various sections of the Indian Penal Code have been framed by the Additional Sessions Judge, Siwan, in Sessions Trial No. 281 of 2006 and that 7.9.2010 is the next date fixed in the case for evidence. I have perused the supplementary affidavit. It appears that due to not getting an order in his favour for releasing him from custody, not only from this Court but also from the Supreme Court in S.L.P. (Cri.) No. 4293 of 2007, the petitioner has preferred the present Miscellaneous Petition. It is admitted that the petitioner while preferring the present petition was not in District Jail, Siwan where he had been sent by the court to be detained in connection with Maharajganj P.S.Case No. 14 of 2000. In one of the earlier petitions for bail, the petitioner took a plea that his wife had to receive kidney from him which was to be transplanted upon her and not finding any acceptable medical report that the petitioner 2 was the only matching person who could be donating the kidney, his prayer was dismissed. The petitioner, thereafter, started taking plea of his own ailment of suffering from various diseases including the heart ailment. In support of his contention the petitioner has placed on record through the supplementary affidavit dated 24.8.2010 various reports said to be submitted after examining the petitioner’s health conditions by different Medical Boards. The report of the first Medical Board is Annexure-17 and it is indicated by this report that it was constituted under the Chairmanship of Dr. B.N.Das, Deputy Superintendent, Sadar Hospital, Siwan, and it held its sitting on 26.6.2010. But, the report does not indicate as to who was the authority directing the constitution of the Medical Board for examining the petitioner. At least, no court had issued any such direction. The report indicates that the petitioner was under the treatment of one Dr.Rakesh Yadav of AIIMS, New Delhi since 10.4.2010 and he had been advised to review check up after one month on 10.4.2010, but no report of that review check up by Dr.Rakesh Yadav or any details indicating that Dr. Rakesh Yadav was the treating Physician of the petitioner was brought on record. The report Annexure-17 indicates as if the condition of the petitioner was very serious and he was to be referred to AIIMS, New Delhi. Till he was shifted to AIIMS, New Delhi, the Board recommended shifting of the petitioner to Sadar Hospital, Siwan. 3 One could very well point out that there are hospitals in different districts but, except a few where there are Medical College Hospitals, they are not equipped to handle or take care of a patient who could having heart ailments. The other Medical Board appears constituted again, one does not know on whose direction or orders, and that report recommended shifting of the petitioner to AIIMS. But, the petitioner was never taken to AIIMS, New Delhi nor did he raise any grievance about not being shifted to AIIMS and appears being produced before the State Medical Board which held its sitting on 23.7.2010 which was having as its members, the Principal Secretary, Health Department, Bihar, Patna, Director- in-Chief, Health Services, a Doctor from the department of Medicine, P.M.C.H. and another Doctor from the department of Cardiology(Medicine), P.M.C.H., Patna. The above Board suggested that till the petitioner is referred to AIIMS, New Delhi, he may be shifted to Indira Gandhi Institute of Cardiology, Patna. The report of Indira Gandhi Institute of Cardiology, Patna, appears at Annexure-19 to the supplementary affidavit and on its perusal, I find that the petitioner does not have any serious heart ailment. Everything appears normal and what the petitioner complained to the treating Physician Dr. S. N. Mishra was that he was having heaviness in chest. The petitioner was admitted on 23.7.2010 and was discharged on 16.8.2010 and during his examination, as may appear from 4 Annexure-19, his blood pressure was 100/70. His chest was quite clear and blood sugar was normal. He was discharged as he was found “stable, asymptomatic” at the time of discharge. Prior to being discharged for what reason the petitioner was got admitted in the Indira Gandhi Institute of Cardiology, P.M.C.H. is simply a riddle for this Court. The petitioner has evaded to be confined in District Jail, Siwan. The reports of different Boards which I have just referred to do not indicate as to from where the petitioner was produced and on whose direction. There is no record in any of the reports that the court had at least suggested or had permitted the examination of the petitioner by a Medical Board. The worst was that the Principal Secretary of the department of Health, Bihar, Patna who is supposed to be a responsible Officer of the State was also not recording in the report of the Board as to from where the petitioner was produced before him. It appears that the father of petitioner is a Member of Lok Sabha. It is recorded, on account of being informed, in the order passed on 28.7.2010 that he was also avoiding the trial proceedings on many grounds including the one that he had to attend many meetings of different committees or even that of the Lok Sabha. The petitioner was not reported consistently placed in Siwan Jail but still he was filing the petition of the present nature. Unless the petitioner is in custody in real meaning of the term, the law is well settled that the petition of the present nature 5 could not be entertained. The most serious thing is that the petitioner has been moved out of Siwan jail by State Officers, without even showing the minimum courtesy to the court which has authorized his detention in that jail in connection with Sessions Trial No. 281 of 2006. The Court views it with all seriousness, specially, when it finds that the Government of the day and its agencies including the Health Department were simply creating records so as to justifying the petitioner’s movement out of the District Jail, Siwan. Any order/notification or permission by which the petitioner could have been shifted out of Siwan jail is hereby declared illegal and ineffective, not to be respected or complied and the same, if any, is quashed. The prayer of the petitioner was rejected earlier as he was alleged to be the assailant of the deceased who had been kidnapped by him and others. He has a long criminal history. His prayer was refused by the Supreme Court also.The petitioner shall forthwith be put in District jail, Siwan, within seven days from the present order. The Inspector General of Police, Bihar, shall ensure compliance and place a report before this Court through an affidavit. The trial court and all concerned including the Superintendent of jail, Siwan, shall ensure that the petitioner is regularly produced on all dates during hearing of the witnesses in the trial court so that the proceedings are properly carried out in accordance with law. No authority shall shift the petitioner 6 from Siwan jail without prior permission of this Court and that too by moving an appropriate petition. The trial court shall hear the case on day-to-day basis. The Superintendent of Police, Siwan, shall depute the Officer-in-charge of Maharajganj Police Station to remain present in the trial court with all witnesses cited in the charge sheet of Maharajganj P.S.Case No. 14 of 2000( G.R. No. 244/2000). He shall take proper steps in advance for producing the Investigating Officer and Doctor, if any, before the trial court on the date(s) the trial court requires them to be produced for their evidence. With the above direction the prayer of the petitioner is dismissed. A copy of this order be handed over to the learned A.P.P. for informing the authorities and the Superintendent of Police, Siwan. This order shall separately be communicated to the trial court, i.e., Ist Additional Sessions Judge, Siwan, in connection with Sessions Trial No. 281 of 2006 through fax at the cost of the court. Kanth ( Dharnidhar Jha, J.)