Dr. Vivek Parekh vs Government Of Karnataka
2021 Latest Caselaw 1931 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 20TH DAY OF APRIL, 2021

                          PRESENT

          THE HON'BLE Mrs. JUSTICE B.V. NAGARATHNA

                             AND

             THE HON'BLE Ms. JUSTICE J.M. KHAZI

                     WPHC No. 35/2021

BETWEEN :
--------------

Dr. Vivek Parekh
S/o. Pankaj Parekh
Aged 34 years
No. 49 and 50
Thulasi Manor, No. 103
1st Floor, 80 Ft. Road
R.T. Nagar
Bangalore - 560 050.                 ... PETITIONER

(By Sri. Divyatej H.N., Adv., for
Sri. Rahamathulla Kothwal, Adv.)

AND :
-------

1.    Government of Karnataka
      Rep. by Director General of
      Police, Prisons and
      Correctional Services
      Karnataka State
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     Bangalore Central Prison
     Parappana Agrahara
     Electronic City Post
     Bangalore - 560 100.

2.   The Chief Superintendent of Prison
     Bangalore Central Prison
     Prappana Agrahara
     Electronic City Post
     Bangalore - 560 100.

3.   Government of Karnataka
     Rep. by its Secretary (PCAS)
     Department of Home Affairs
     Vidhana Soudha
     Bangalore - 560 001.

4.   Union of India
     Rep. by its Secretary
     Ministry of Home Affairs
     North Block
     Raisina Hill
     New Delhi - 110 001.

5.   The State by CBI, ACB
     Ganganagar
     Bellary Road
     Bangalore - 560 032.             ... RESPONDENTS

(By Sri. V.S. Hegde, SPP-II)

                               ---

     This WPHC is filed under Articles 226 and 227 of the
Constitution of India with a prayer to issue a writ in the
nature of Habeas Corpus ordering the immediate release of
the petitioner's mother namely Smt. Asha Parekh (CTP No.
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12131) who is illegally placed under confinement by the
respondent Nos. 1 and 2 prison authorities and etc.

    This WPHC coming on for Orders this day, B.V.
NAGARATHNA, J, passed the following;


                           ORDER

Learned SPP-II has filed the affidavit of respondent

No. 2 - Dr. Ranganath P., working as Chief Superintendent

of Central Prison, Bengaluru, Parappana Agrahara,

Electronic City Post, Bengaluru - 560 100, enclosing two

documents after serving a copy of the same on the learned

counsel for petitioner.

2. On perusal of the same petitioner's counsel drew

our attention to the fact that in Annexure R-1 Dr. Uma M.,

Chief Medical Officer, Central Prison Hospital, Central

Prison, Bengaluru - 560 100, has categorically opined as

under:

"Currently, she complains of continuous and on-going severe low back pain radiating to both the legs i.e., Sciatica radiating pain along with numbness in both her feet due to which she is finding difficulty in sitting and squatting down and sleeping on the floor and standing for a long time. Thus, she is unable to carry out her activities of daily living independently. Since the time of her Judicial Custody she has been placed in prison hospital along with providing the basic health care and facilities. However, we are unable to provide regular physiotherapy due to lack of facilities. She has to undergo major surgery L5 to S1 Decompression and Discectomy with TILF recommended by the treating orthopedician Dr. Anil Patil for her persisting disease condition. There are no facilities for the said surgery at Central Prison Hospital, Bengaluru. The treating doctor also has recommended rest for a period of three months following the surgery."

3. Learned counsel for petitioner submitted that in

view of the report at Annexure-R-1 stating that Smt. Asha

P. Parekh, in respect of whom this petition has been filed,

has to undergo major surgery a direction may be issued to

the respondents to release her so that the petitioner could

make arrangements for her medical treatment including

surgery. He submitted that in Annexure R-2 also the

aforesaid contents are noted. Learned counsel for

petitioner submitted that despite the aforesaid medical

opinion the respondents have not taken steps for the

release of Smt. Asha P. Parekh who is undergoing sentence

in the central prison. Hence, this petition has been filed.

4. Learned SPP-II submitted that the petitioner herein

who is the son of Smt. Asha P. Parekh, has not taken steps

under the provisions of the Karnataka Prison Rules, 1974

(for the sake of brevity hereinafter referred to as the `Rules')

for seeking release of his mother as it is his case that she is

ill. Had an application being made under the provisions of

the Rules the same would have been considered and

appropriate treatment would have been accorded to her.

Instead, the petitioner has simply filed this writ petition of

Habeas Corpus bypassing the procedure laid down under

the Rules. In the circumstances Smt. Asha P. Parekh

cannot simply be handed over to the petitioner as she is not

under illegal detention but in detention pursuant to her

conviction in Special C.C. No. 187/2000 by judgment dated

30.03.2010 passed by XXI Additional City Civil and

Sessions Judge and Special Judge for CBI cases, Bangalore

which has been affirmed by the Hon'ble Supreme Court.

5. By way of response, learned counsel for petitioner

drew our attention to the representation of Smt. Asha P.

Parekh dated 10.03.2021, a copy of which is produced as

Annexure D and typed copy as Annexure D-1. He

submitted that the respondent jail authorities have not

taken any steps to consider the said representation and

accord her medical treatment despite the opinion of the

prison Doctor.

6. In the circumstances we observe that the said

representation dated 10.03.2021 made by Smt. Asha P.

Parekh be construed as a representation under Rule 68/69

of the Karnataka Prison Rules, 1974 and the same may be

considered having regard to Rules 70 and 71 of the said

Rules and an appropriate decision be taken with regard to

according medical treatment to Smt. Asha P. Parekh. The

said decision shall be taken on or before 24.04.2021.

Before taking the said decision the petitioner, who is the

son of Smt. Asha P. Parekh also be heard in the matter as

in case she requires surgery and the same is to be

conducted in any private hospital, suggestions to be made

by the petitioner for her admission in a private hospital

would also be taken into consideration and reference to the

said private hospital could be made by the concerned Chief

Medical Officer of Central Prison, Bengaluru in accordance

with the extant norms. For that purpose the petitioner to

appear before respondent No. 2 on 21.04.2021 at 03.00

pm. Decision to be taken with regard to the medical

treatment to be accorded to Smt. Asha P. Parekh shall be

communicated to the petitioner. In case steps are to be

taken for her treatment in any private hospital, all

safeguards that are necessary including an undertaking

etc., by the petitioner shall be given including furnishing of

security and other conditions to be imposed by respondent

No. 2 shall be complied with by the petitioner. It is needless

to observe that in the event of any surgery is to be

performed on Smt. Asha P. Parekh, post surgery

procedures and compliances shall also be made.

7. We have issued the aforesaid directions having

regard to the mandate of Article 21 of the Constitution

including right to medical assistance of a prisoner

undergoing sentence in a jail and in exercise of our judicial

discretion under Article 226 of the Constitution of India.

Hence, submissions on maintainability of this petition

which has been raised by the Registry as such have not

been heard.

8. The writ petition is disposed of with the aforesaid

observations and directions.

9. In view of the disposal of this writ petition removal

of office objections stands waived.

Sd/-

JUDGE.

Sd/-

JUDGE.

LRS.