"Adopt Humanitarian Approach": Bombay HC Bail Order For Varavara Rao

The Bombay HC sought to balance the fundamental rights of the accused versus the right to a fair trial.

Constitutional Courts cannot be mute spectators to the deteriorating health of an undertrial, the Bombay high court observed when it granted bail to poet-activist Varavara Rao. The octogenarian, an accused in the Elgar Parishad-Bhima Koregaon case, was granted bail subject to conditions on medical grounds on February 22.

The 82-year-old is suffering from pre-existing health ailments which include piles, prostate enlargement, coronary artery disease, Oedema/Anasarca (swelling of feet), Hypertension, Sinusitis, Migraine and Vertigo. He contracted Covid19 when he was in jail. then when he had covid, the was delirious and had no control of his bladder. his rectum was bleeding," the high court noted.

Considering Rao's fundamental right to have quality medical aid for serious ailments he is suffering, his advanced age, inadequate facilities in the hospital attached to the Taloja Central Prison, the court as of the opinion that his case was "a genuine and fit case to grant relief"; or else, it would "abdicating" its constitutional duty and function as a protector of human rights, the high court said.

The court added that it could not ignore how Rao was being shuffled by "being sent to prison and then to Government Hospitals where his health deteriorates further, to be ultimately shifted to the Private Super-specialty Hospitals, upon the intervention of courts and such movements of the undertrial continue back and forth only because his bail application has been turned down on merits under Section 43D(5) of the UAPA".

"…We are of the opinion that adopting a humanitarian approach in the peculiar facts and circumstances of the case is warranted," the division bench added.

Also Read: Bombay HC Grants Varavara Rao Six-Months Bail On Medical Grounds

Health condition cannot be ignored merely because undertrial is an accused

The high court noted that just because Rao was booked under charges for serious offences, his health condition cannot be ignored. Even though hospital reports suggested Rao's condition was improving the high court said such findings cannot lead to the conclusion that the undertrial can be sent back to the Taloja Central Prison in view of the specific findings rendered.

"We are also of the opinion that the offer made by respondent-State that the undertrial will be kept in the Prison Ward of the J.J. Hospital is also not tenable in the facts and circumstances of the case," the high court added.

The high court sought to balance the fundamental rights of an individual versus the right to a fair trial. "…we are of the opinion that the undertrial cannot be granted bail on medical grounds, for the present, for an unlimited period of time and unconditionally. The court needs to strike a balance between the rights of the undertrial and the necessity of bringing the accused to book, as early as possible, the high court said granting bail with appropriate conditions.

The high court noted that health records indicated Rao's condition was precarious and sending him back to where he belongs "is fraught with the risk" of his presence being used by those allegedly associated with him to seek to revive the aforesaid nefarious activities.

"This court cannot rule out such a contingency and, therefore, it would be appropriate to impose such conditions as would be necessary for ensuring that the undertrial on his own or those allegedly associated with him do not take undue advantage of the situation, which would ultimately adversely affect the trial," it added.

Also Read: Varavara Rao, The 80-Year-Old Incarcerated Poet-Activist With COVID-19

Continued custody of the old, sick, infirm endangering life violate fundamental rights

"We find substance in the apprehensions expressed on behalf of the undertrial about the possibility of the undertrial requiring repeated admissions to Government facilities which have proved to be inadequate, which would lead to the undertrial or his relatives repeatedly approaching courts for appropriate directions for dealing with deterioration of his health if he is put back in custody," Justice SS Shinde and Manish Pitale observed.

"In the said process, the possibility of casualty cannot be ruled out," the judges added. "Therefore, it cannot be said that the contentions raised on behalf of the undertrial are based merely on unfounded apprehensions and that they cannot be considered for grant of bail to the undertrial on the basis of his old age, sickness, infirmity and health conditions.

"The condition of old age, sickness, infirmity and multiple health ailments suffered by the undertrial indicate that his continued custody would be incompatible with his health conditions and that sending him back to Taloja Central Prison would amount to endangering his life, thereby violating his fundamental right under Article 21 of the Constitution of India," the high court added.

Also Read: No Bail, Telemedicine Allowed For Ailing Accused Varavara Rao

Undertrial can be released even when regular bail plea rejected on merits: HC

During the trial, the question of law arose whether a high court could exercise its writ jurisdiction to enlarge an undertrial accused on bail even regular bail plea were rejected on merits in Unlawful Activities (Prevention) Act (UAPA) cases.

To answer this, the division bench referred to the Supreme Court February 1, 2021 verdict in KA Najeeb where it categorically held that in the context of an undertrial's sufferings where the proceedings before the trial court take years to be completed, that "the rigours of provisions pertaining to grant to bail found in special statutes like the UAPA will melt down where there is no likelihood of the trial being completed within a reasonable time."

"Therefore, the continued incarceration of an accused like the undertrial in the present case would violate his right under Article 21 of the Constitution, considering the precarious health condition of such an accused," the court concluded.

In this context, the contentions raised on behalf of the undertrial pertaining to the question as to how much life of the undertrial now remains also assumes some significance," the high court noted. "Admittedly, the undertrial is about 82 years old, suffering from health ailments noted above, requiring support from his immediate relatives in order to have some semblance of normalcy during whatever period of life now remains," it added.

The high court noted that documents submitted in this case showed that initially Rao's relatives were not even informed about his health condition till he was admitted to the Nanavati Hospital on the intervention of this court. "In these proceedings, his relatives were also granted access to him in the said hospital, which remarkably improved his health condition and appeared to bring him back from the brink," thus, in the background of this case, the question of whether a high court could allow an accused on bail despite failure to get regular bail was answered.

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