Full Judgment
S.C. Mohapatra, J.
1. Notice was issued to opposite party to show cause why the bail granted to' him shall not be cancelled. Pursuant to the notice, the opposite party has entered appearance.
2. Opposite party along with others has been implicated in the offences under Sections 307/326, I.P.C. on the allegation that on 24-8-1987 at about 7 a. m. the injured Chandra Sekhar Baral was going to attend the call of nature when the accused persons being armed with deadly weapons like farsa, sword and knife suddenly came out from the bush and attacked him with intention to cause his death. As a result of such attack, the left hand was to be amputed from the wrist and also there was fracture of his left leg. Besides, several incised wounds were caused on the body.
3. Accused persons moved for bail which was rejected by the learned Sessions Judge. This Court was moved and by order dated 4-12-1987 bail application so far as the opposite party was concerned was rejected by L. Rath, J. Opposite party thereafter once again applied for bail before the learned Sessions Judge which was rejected. Thereafter, he again filed an application for bail on 16-1-1988 on the ground of sickness along with a petition to call for a report from the doctor regarding his health condition. Learned Additional Sessions Judge called for a report from the doctor regarding the health condition of the opposite party which was received in Court immediately. It reads as follows:
One, Gadadhar Baral, S/o Satha Baral, aged about 29 years, an undertrial prisoner of District Jail, Puri, has been admitted in the Jail Hospital since 31-12-87, with the complaints of low backache, morning stiffness, painful and blood and mucus in the stools, abodominal cramp, pyorrhoea and loss of appetite.
On careful examination, he is found to be probably a case of carvical spondylitis and alcorative colitis with pyorrohoea. He is not responding to the treatment available at present here. He needs specialised investigations like serology test of Rheumatic factor, radiography and Liver function tests etc. at a specialised institute for proper diagnosis and management, so no such facilities are available here.
Due to continuous illness, he is physically weak, meantally depressed and has lost weight.
4. The ground in the bail applications to the following effect:
That shocked by his detention in Jail and failure of his attempts to have the privilege of bail had a very deleterious effect on his body and mind and he has been severely affected by rheumatism and arthritis. He is unable to look after himself and has been confined to a sick bed in the Jail Hospital for quite long and he requires the constant help and assistance of his close relations. He can never be cured of these deliberating diseases by the allopathic treatment in jail and the jail authorities would not permit any other system of treatment. He would therefore gradually slide towards death. Before this eventuality is expressed he wants to avail of a last chance to survive in freedom.
5. In the aforesaid background, I was of the opinion that it is a fit case where the question of cancellation of bail should be considered and directed the matter to be placed before L. Rath, J., who rejected bail earlier to consider for question. His Lordship having expressed that the matter should be taken up by me, I directed issue of notice.
6. Learned Additional Sessions Judge while granting bail observed:
It is true that all his efforts to get released on bail were failed from the date of his surrender in the court. Now he is sick and filed medical certificate in support of his illness, on medical grounds, I think he should be released on bail....
7. Sickness is a ground to release the accused in a non-bailable offence on bail as provided in Section 437(1) proviso of the Cr. P.C. However any nature of sickness would not entitle an accused for release on bail. It should be of such nature that unless the accused is released, he cannot get proper treatment for his cure from the ailment. Unless this interpretation is given, the legislative purpose behind a non-bailable offence shall be frustrated. The proviso is based on humanitarian grounds merely because a person is detained in custody being accused of a non-bailable offence, the same should not be a ground for his physical suffering when in our jurisprudence an accused is presumed to be innocent until proved to be guilty. Therefore, the sovereign power shall have to make all arrangements for medical treatment of an accused in custody. Where red tapism or lack of alertness causes delay to afford the required treatment to an accused in custody. Court can consider to release him on hail. In such cases Courts should make adequate enquiry before releasing the accused on hail. Whether an accused would be released on bail would depend upon facts and circumstances of each case.
8. The report of the medical officer which has been quoted earlier is not definite since he uses the term 'probable'. According to him the sickness is spondylitis and ulcerative colitis with pyorrhoea. It is stated that the accused was not responding to the treatment available in the jail at that time. No indication has been given as to what treatment was offered to the accused. The disease as revealed in the bail application and in the report is different. This difference has not been brought to the notice of the learned Sessions Judge. No enquiry has been made by the learned Sessions Judge if the accused while in custody can be examined and treated by specialists as indicated by the medical officer. The nature of treatment afforded and the cause for such treatment not responding should have been enquired into for giving a specific finding that the medical officer who is not able to give a definite opinion has not acted negligently in the treatment of the opposite party. In any case, enquiry should have been made if the State Government or other competent authority has been moved for adequate examination and treatment of the opposite party while in custody. In such circumstances, I am satisfied that the grant of bail to the opposite party is without application of judicial mind and accordingly, is improper. The bail granted to the opposite party is, thus, cancelled.
9. Mr. R. Mohanty, the learned Counsel for the opposite party submitted that the opposite party is now under treatment at Government Hospital at Sakhigopal since 12-3-1988 as an out-patient since he is suffering from chicken-pox. In that view of the matter, the opposite party is allowed to sufrender to custody after quarantine period is over. The bail bonds shall remain valid till the opposite party is taken to custody for the purpose of direction to the bailors to produce the opposite party and other consequential steps. On the opposite party surrendering to custody an application for bail if filed on the ground of sickness the same shall be considered afresh by the learned Additional Sessions Judge on the materials already in court and after making the necessary enquiries in the light of the observations made in this order.
10. In the result, the rule issued is made absolute. In case the opposite party does not surrender to custody immediately after his cure as directed, steps should be taken for his arrest.
Send back the records at once.