ORDER
1. These are two petitions in revision on behalf of two accused Pazl Nawaz Jung and Abdul Hamid Khan against the order of the Special Judge refusing bail. The petitioners also invoke the aid of Sections 498 and 561-A Criminal P.C., and Section 24 of the Hyderabad High Court Act. These petitions are disposed of by this single order.
2. The charge against the accused briefly stated is as follows: The Majlis Ittehad-Ul-Muslimeen was started in, 1928 as a sectarian organisation with the object of achieving the supremacy of the Muslims in Hyderabad State. It built up a state-wide branch organisation in districts and Taluqas and in 1937 organised a Volunteer Corps called the Razakars. Syed Kasim Razvi became Its President in December 1946 and continued as President till September 1948. He used the organisation as a means of achieving the objects of himself and the members of the Central Working Committee and the Central Committee of Action. namely the creation of an independent Islamic State with a Muslim majority, in view of the intended transfer of power to the Indians in India. The razakar Organisation was strengthened considerably by a campaign of vigorous recruitment. They were given Military training with firearms and uniforms. They paraded and marched in flagrant violation of law and Regulations - The Razakars became an illegal private body - and started a campaign of speeches vituperative and vitriolic in tone, anti-Hindu in conduct to foment communal hatred and disturb communal tranquillity and decided under a pact entered into with B.S. Venkat, Rao the loader of, the depressed classes, to drive away caste Hindus out of Hyderabad and settle imported Muslims in their place and on their lands. In order to have a Government in sympathy with their objectives and activities, Syad Kasim Razvi and the Working Committee, and Committee of Action succeeded in compelling two successive Prime Ministers of Hyderabad, Sir Miraa Ismail and the Nawab of Chathari, to resign by the use of force and threats of personal violence. Accused 3, 5, 6 and 7 who were top-ranking members of the Majlis and its Working Committee, accused 2, 8 and 9 who were sympathetic with the ideas and objects of the Majlis and B.S. Venkat Rao who had pledged his and his party's support were installed in office as ministers with Mir Lain Ali who was an active sympathiser and supporter of the Majlis as Prime Minister, through the efforts of Kasim Razvi and the Majlis. The formation of the Laik Ali Ministry imbued with the Majlis ideology made the achievement of the objectives of the Majlis easier, by making the Government Officials especially of the Revenue and Police Departments fall in line with, the District and Taluq Organisations of the Majlis. Finance, arms, transport, petrol, cloth and food rations, were liberally supplied to the Razakars who were engaged in, organising a State-wide campaign of terrorism, class hatred, commission of atrocities on Hindus. Bands of Razakarts also in the guise of Civic Guards committed atrocities such as killing, looting and arson. These were the direct result of the instructions and decisions of the Majlis and the assistance passive and active rendered by the officials especially of Revenue and Police Departments, and the inspiration, connivance and condonation by Laik Ali and the other Muslim Ministers, B.S. Venkat Rao and Deen Yar Jung, Director-General of Police. All the accused along with other persons became parties to a criminal conspiracy with the common object of driving caste Hindus out of the State by creating conditions of alarm and panic, by killing, looting1 and other acts of violence. In pursuance of this criminal conspiracy and as a direct result thereof several hundred murders, thousands of dacoities, and thousands of cases of arson with loss of property valued at about a crore of rupees, and other offences were perpetrated in the Hyderabad, State by Razakars, Deendars, and depressed classes. All these ministers identified themselves with Kasim Razvi and the armed band of Razakars and local Majlis. They actively and openly encouraged Razakars, They evinced interest in their working.
3. Applicant Fazl Nawaz Jung is accused No. 9 and was the Revenue Minister, and applicant Abdul Hamid Khan, accused, No. 8 was Police Minister in the Laik Ali Cabinet. B.S. Venkat Rao is now an approver.
4. It is also stated that Laik Ali the prime Minister escaped to Pakistan while under houses arrest at Hyderabad and in spite of Police guard;? and that two important witnesses for the prosecution who were bound over for appearance have also escaped to Pakistan, one of them having obtained permission from the Court to proceed to Bombay for medical treatment and masquerading with his wife as Mr. and Mrs. Pinto and that some of the other Ministers in the Laik Ali Cabinet had already escaped to Pakistan and have not yet chosen to appear before the Court though they are among the accused.
5. We do not accept the contention that there are no reasonable grounds for believing that petitioners have been guilty of the offences charged. In our view, prima facie', there are reasonable grounds on the record. We do not consider it desirable to go into the details at this stage, as after all, it is only a 'prima facie' opinion for purposes of Section 497, Criminal P.C.
6. The main ground on which the petitioners seek bail is their sickness. With regard to Fazl Nawaz Jung it is complained that he is suffering from Coronary Thrombosis or Anginia Pectoris, slow beating of the heart and anaemia. The petitioner is having heart trouble even before he was taken ay a Minister in the Laik Ali Cabinet. It is alleged that his condition is deteriorating. The lower Court after recording evidence came to the conclusion that in view of the seriousness of the offences the condition of the patient was not such as to justify the grant of bail.
7. The petitioner was examined at the instance of Government by Raja Bahadur Lt.-Col. Waghrey, G.M.R.C.P., Retired Director-General, Medical Department, Hyderabad, and now practising as Medical Consultant, on 28.5.1951 and also by the Jail Medical Officer, Dr. P. Sunder Raj. Petitioner Abdul Hamid Khan was also examined by Dr. Waghrey, during the course of these proceedings before us. Lt. - Col, Waghrey was also examined before us on behalf of the petitioners.
8 Dr. Waghrey states as regards Fazl Nawaz Jung that the latest report with regard to his health shows that he is 'generally in a more deteriorated condition.' He suggests 'change of environment and psychology', meaning by change of environment' 'more genial surroundings.' We asked the Doctor whether the continuance of the patient in Jail would impair his health, to which he stated that it was a very difficult question to answer. He said that remaining with his family must be considered as providing a person with 'more genial surroundings.' He also says that yet there may be cases where a patient has to be removed from his family for the sake of his health. When asked whether the condition of the patient would improve if necessary treatment was taken outside Jail, say in any other place or at his house, he replied that there are 'better chances' for improvement, but that he could not say that improvement was a certainty. The witness was also questioned whether if while in jail the patient was afforded facilities for members of his family to visit him more frequently and to stay with him longer hours and was also given newspapers, books, gramophone or radio it would improve his condition? He replied that such a course was worth while trying and that it was the next best that could be done if the accused could not be released from jail. The witness also said that the mental outlook of the patient is as important as his surroundings or even more.
9. The Advocate-General for the prosecution refers us to an earlier medical examination, the electric cardiogram and the evidence of Dr. Bunkat Chandra showing that the heart had become normal even when the patient was in jail custody and he argues that the petitioner would not take the prescribed treatment for anaemia, viz., iron tonic and some other medicines on the ground that it caused him constipation. This statement is borne out by the record. According to Dr. Waghrey, alternative treatment could be arranged for the petitioner in the jail and that the treatment would be one of 'trial and error.' Dr. sunder Raj's report is that the accused did not co-operate with him in receiving medical treatment and Dr. Waghrey's opinion is that the present deterioration might also be explained as due to the patient's non-co-operation.
10. Considering the cumulative effect of the medical evidence placed before us while it is true that the accused is suffering from heart disease complained of, and anaemia, we feel that whatever treatment can be given for it, that can equally be given to him in jail, there being no 'special' treatment which could not be made satisfactorily available to him within the Jail. There is nothing to suggest that the present condition of the patient is the result of the surroundings in jail: The petitioners' Advocate concedes that the petitioners are given special and better treatment analogous to that given to political prisoners, than what is normally given to under-trial prisoners.
11. As for psychology and mental worry, the fact that the petitioners once having held high positions are now facing a trial on a charge comprising heinous offences on a colossal scale will certainly weigh on their minds and it is impossible for anybody to remove that psychological feeling whether the petitioners are in jail or outside it.
12. As regards providing Fazl Nawaz Jung with more genial surroundings as suggested by Dr. Waghrey to help the patient to improve his health, we find that that could be done within the jail itself. We have to bear in mind that the charge against the accused is heinous and is punishable with death or transportation for life. The discretionary power of the Court to admit to bail is not arbitrary but is judicial and is governed by established principles. The object of the detention of the accused being to secure his appearance to abide the sentence of law, the principal enquiry is whether a recognisance would effect that end. In seeking an answer to this enquiry, Courts have considered the seriousness of the charge, the nature of the evidence, the severity of the punishment prescribed for the offences, and in some instances, the character, means and standing of the accused, Vide Nagendra v. Emperor AIR (11) 1924 Cal 476 at p 479. In Emperor v. Abhairaj Kunwar AIR (27) 1940 Oudh p. 8 it is laid down that the social position or status of the accused should never be taken into consideration when granting or rejecting an application for bail, nor should the Court express any opinion on evidence in an application for granting bail. We may also point out that while detention during trial is not in the nature of punishment, still it is meant to see that the accused does not prefer escape and exile to facing the trial. The severity of the sentence has to be borne in mind in considering the probabilities of escape, and Courts normally decline bail in cases of offences punishable with death or with transportation for life, since the severity of the punishment is itself such as to induce a person to escape the trial. Applying these principles to the present case, we feel that the petitioner Fazl Nawaz Jung should not be enlarged on bail. At the same time we feel that more genial surroundings and amenities with adequate treatment should be afforded to him subject to the discipline of the jail to help him to improve his health. The Government will see what best could be done for the petitioner in this regard, talking also the wishes of the petitioner into consideration including facilities for frequent visits by members of his family. The Advocate-General has informed us that the Government Is very likely to constitute also a Medical Board in the near future to examine the accused as it has on its own motion recently got the petitioner examined by Dr. Waghrey. It is gratifying to note that the Government fully aware of its responsibilities in the matter, is keeping itself apprised of the condition of the patient.
13. The learned Advocate for the petitioner has relied on a ruling in EMPEROR v RANI ABHAIRAJ KUNWAR AIR (27) 1940 Oudh 8 and points out that the accused therein was a woman of about 60 years under medical treatments for the last 10 years suffering from heart trouble Myocarditis with aedema of legs and diabetis and that she was released on bail by the Sessions Court and the High Court refused to interfere. We however find that in that case the prosecution was for an attempt to murder under Section 307, I.P.C., that all the important witnesses for the prosecution were already examined, that only the father and brother of the complainant remained to be examined, that the Court held that these two persons being closely related to the complainant could not be tampered with by the accused, that the remaining witnesses were only formal and that there war, no suggestion by the crown that the witnesses would abscond (Page 12.) These are the features - distinguishing the ruling from the case before us.
14. The prosecution has strongly urged that there is likelihood of the petitioners absconding and that there is likelihood of the witnesses being tampered with. An affidavit in support is also filed. Laik Ali the Prime Minister has escaped to Pakistan and is not standing his trial. Some other ministers who are also among the accused are reported to be in Pakistan, and have not chosen to face the trial. Advocate for the petitioner argued that because Laik Ali had business interests in. Pakistan he escaped to Pakistan. Business interests cannot justify his escape to Pakistan or his avoiding his trial here. Two important witnesses have flown away to Pakistan. There is therefore much to justify the apprehension of the prosecution.
15. In 'Kirk's case' 87 ER 760 at p. 761 : 5 Mod 454 the accused who was indicted for murder applied for bail as 'he was dangerously ill by reason of the badness of the air and the inconveniences of the prison.' Chief Justice Holt rejected the application holding that 'it does not appear that by this imprisonment the accused was in danger of his life.'
16. As regards the words 'sickness or infirmity' to be considered in questions of bail used in Section 497 of the Criminal P.C., we consider that it is not every sickness or infirmity that entities a person to be enlarged on bail. The circumstances of the case and their cumulative effect, the seriousness of the offences, the severity of the punishment, the likelihood of the accused absconding or tampering with witnesses, the nature and seriousness of the sickness or infirmity, the suitability or otherwise of remand to jail custody and the availability of the necessary medical treatment and reasonable amenities have also to be borne in mind.
17. In the result, while we recommend to the Government that adequate facilities and more genial surroundings be afforded to the petitioner or he be permitted to have them as far as possible subject to the discipline of the jail, we dismiss the petitions of Fazl Nawaz Jung.
18. As regards the other applicant Abdul Hamid Khan, the considerations and remarks already made apply to him also, except that he is suffering from Spondylitis and Osteo-Arthrities. Dr. Waghrey deposes that it is a disease common with advancing age, that the treatment is mostly palliative and that there is no special treatment for it which cannot be administered in jail. We dismiss his petitions also, while at the same time recommending to the Government that he also may be afforded more genial surroundings and amenities as could reasonably be given.
19. in the result, therefore, all the petitions are dismissed.