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Himansu Sekhar Nandy Vs. Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in42(1976)CLT1262; 1977CriLJ312
AppellantHimansu Sekhar Nandy
RespondentMagistrate and anr.
Cases ReferredKharak Singh v. State of U.P.
Excerpt:
.....the life is enjoyed (see the case of kharak singh v. this obligation on the part of the state would arise even apart from the order and the rules of the jail manual which is in accord with the spirit of the order providing for supply of bedstead, mosquito poles, mosquito nets, pegs and the like to the detenu at state cost 7. in the aforesaid analysis of the provisions of the act, the order, the rules of the jail manual and the aforesaid fundamental obligation of the state towards its citizens, we have no doubt that the state is bound to supply a pair of specs as per the prescription of the eye specialist......was necessary for dealing effectively with emergency. this declaration was duly confirmed by the state government within the period prescribed by law. during the course of this detention the petitioner developed eye trouble and found it very difficult to read and write. the eye trouble became so serious that the superintendent of jail with the previous sanction of the district magistrate removed the petitioner to the district hospital for affording him special treatment there. after necessary examination and treatment the specialist issued a prescription for constant use of specs. the prescription was produced by the learned counsel for the state for our inspection. thereafter, the petitioner made a representation to the detaining authority on 3-2-1976 for providing him with specs as.....
Judgment:

S.K. Ray, A.C.J.

1. This is an application by a detenu under the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the 'Act') for a direction to the District Magistrate, Balasore and the Secretary, Home Department, Government of Orissa, to provide him with specs at the cost of the State.

2. The petitioner was detained under the Act pursuant to an order of detention passed by opposite party No. 1 under Section 3(1)(a)(ii) of the Act dated 4-2-1976 as the detention of the petitioner was necessary for dealing effectively with emergency. This declaration was duly confirmed by the State Government within the period prescribed by law. During the course of this detention the petitioner developed eye trouble and found it very difficult to read and write. The eye trouble became so serious that the Superintendent of Jail with the previous sanction of the District Magistrate removed the petitioner to the District Hospital for affording him special treatment there. After necessary examination and treatment the specialist issued a prescription for constant use of specs. The prescription was produced by the learned Counsel for the State for our inspection. Thereafter, the petitioner made a representation to the detaining authority on 3-2-1976 for providing him with specs as prescribed by the eye-specialist, at the earliest possible date on the ground that he had no independent earning. He also sent a reminder subsequently on 15-2-1976 (Annexure 2) in which he has expressly alleged that 'it is not possible on my part to afford specs due to horrible pecuniary condition owing to my detention.' When his representation went unheeded he filed the present application in which he has alleged that his eye-sigiht was gradually worsening and deteriorating due to non-use of specs.

3. Without denying the factual averments made in the writ application, the case of the opposite parties is set out in para. 4 of the counter which runs as follows :

That the conditions of detention of persons detained under MISA and the facilities which are admissible to them have been laid down in the. Orissa Security Prisoners (Conditions of Detention) Order, 1971. This order has been framed by the State Government in pursuance of Section 5 of MISA. Under these orders, a detenu is not entitled to be supplied with spectacles at Government cost. Even though medicines are provided to the detenus for their treatment at Government cost, spectacles cannot be provided as they do not fall within the category of medicines, but under the category of medical appliances. Hence the petitioner is not entitled to be supplied with spectacles at Government cost. The petitioner may however obtain sufficient money from his own resources to purchase the spectacles and the question of according permission for this purpose will be considered if the petitioner makes such a request to the State Government. The deponent further submits that matters relating to supplying spectacles and similar other amenities and facilities to a detenu are purely administrative functions within the discretion of the State Government and no writ petition can lie on this matter.

4. The petitioner has specifically asserted in para. 5 of his petition:

That as a result of detention I have been devoid of all resources and ability to afford for specs. I have even been denied family subsistence allowance by the O.P.

The opposite party in his counter has referred to para 5 of the writ petition; but has not denied the averments as to petitioner's penurious condition and financial inability to purchase the specs as per the prescription of the specialist on account of his detention. This is what has been stated in the counter:

That with regard to averment in para 5 of the writ petition, the deponent submits that under Clause 32 of the Orissa Security Prisoners (Conditions of Detention) Order, 1971, the detenus are permitted to receive funds from their relatives and friends subject to the conditions specified in the aforesaid clause. Hence the contentions of the petitioner in this paragraph are not tenable.

There is nothing on record to show that the petitioner has any affluent relatives or friends who could contribute the cost of the specs. There can, therefore, be no doubt that the petitioner has no indepen-dant source of income, that he has not been given any family allowance and that there is no other possibility of his coming into funds while in detention.

5. The sole question for consideration, therefore, is whether in the aforesaid condition of the detenu the Government is liable under any law to supply him with a pair of specs as per the eye-specialist's precription without which there is every likelihood of a resulting blindness. Section 5 of the Act provides that every person in respect of whom a detention order has been made sihall be liable to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify. Pursuant to this provision the Orissa Security Prisoners (Conditions of Detention) Order, 1971 (hereinafter referred to as 'Order') was made. Rule 2 thereof runs as follows:

All security prisoners shall be placed in one class called class 'S' and except as otherwise provided in this Order, shall receive the same treatment as is provided in the State Jail Manual for prisoners of Division I.

Therefore, it is to be seen if the petitioner's claim is admissible under the Orissa Jail Manual and the Order or under any other general principle of law. Rules 5, 6 and 7 of the Order provide for supply of clothing, bedding, bedstead, mosquito poles, mosquito nets, a stool, a set of pegs and diet at the State expense. There does not appear to be any specific provision regarding medical treatment of a sick detenu or a detenu suffering from any sort of ailment or disease. Section 1, Chapter XXXIV of the Jail Manual deals with accommodation, furniture and equipment, clothing, diet, interviews and communications, discipline and punishment of Division I prisoners. Chapter XL of the said Manual deals with medical administration of all persons in general inclusive of Division I prisoners. The Medical Officer of the Jail is required under the various rules of this Manual to examine the prisoners and treat them as required by the condition of disease of any particular prisoner and may treat him as an outdoor patient of the jail hospital or may admit him to the jail hospital if the condition of the patient so warrants. Rule 1122 specifically provides that no drugs, medical or surgical appliances, etc. from private sources shall be permitted to enter the jail without the approval of the Medical Officer. Rule 1123 provides that 'if a case in jail requires an immediate or serious operation or other special treatment and there are no facilities for undertaking it, the Superintendent with the previous sanction of the District Magistrate shall remove the prisoner, under proper guard, to the Sadar Hospital, if he considers this course to be necessary in the interest of the prisoner.' It is; clear from the aforesaid provisions that the detenu must, inter alia, be afforded medical treatment including supply of drugs, medical or surgical appliances etc. which are necessary adjuncts of 'treatment'. Rule 1122 of Jail Manual Prohibiting entry of drugs, medical appliances or surgical appliances from private sources into the jail indicates that such drugs, melical appliances or surgical appliances which are necessary for treatment of a detenu are to be supplied at Government cost. In para 4 of the counter, the opposite parties have admitted that spectacles are medical appliances though they are not medicine. Thus, in view of the Rule 1122 of Jail Manual prohibiting supply of spectacles from private sources, those have to be supplied by Government at their cost.

6. Viewed from another angle the same conclusion is reached. Reading Rule 2 of the Order and Rules 1122 and 1123 of the Jail Manual, it appears that the detenu must be afforded medical treatment at the Government cost. The word 'treatment' must be understood in its fullest [amplitude and not in the narrow sense of palliative treatment - treatment; required to deal with casual illnesses, 'Treatment' in the Chambers's Twentieth Century Dictionary means, way of applying remedies. In Webster's Dictionary 'treatment' means manner of applying remedies to cure; mode or course pursued for remedial ends; as, the treatment of a disease; the treatment of a patient, In Corpus Juris Secundum, Volume 87 at page 949, the word 'treatment' is said to be also employed to indicate all the steps taken in order to effect a cure of an injury or disease. Cure as the end would include arresting the disease from further worsening as a step towards that end. 'Treatment' would include taking such steps as would not only tend to effect a cure of a disease but also steps which would prevent further deterioration of the disease. Thus, prescription of a pair of specs by the eye-specialist was a course of treatment meted out to the detenu or a step taken as a remedial measure either to cure the disease or to prevent its further deterioration which, if unattended, had the possibility to end in total blindness. There are some kinds of diseases which can be treated by drugs alone and there are some other kinds of diseases like eye diseases which can be treated both by drugs as well as by medical appliances like specs. Therefore, when Rule 2 of the Order read with Rules 1122 and 1123 of the Jail Manual enjoin upon the State to afford medical treatment to the detenu, it would include providing a pair of specs which is a necessary step to be pursued for not only the cure of the! eye disease but to prevent its further de-1 terioration with the likelihood of the more frightful consequence of total blindness. Therefore, upon the above construction of the expression 'treatment' in the aforesaid rules it appears to us that the State is bound to supply a pair of specs to the detenu at their cost.

The Act entitles the State to detain the detenu as being necessary for dealing effectively with the Emergency. His liberty, therefore, is taken away, but not his life and property. Life which means something more than mere animal existence is not intended to be taken away under the Act. The detenu is entitled to ask this Court that the State be directed to preserve his life, though not Ms liberty. Inhibition against its deprivation extends to all those limbs and faculties by which the life is enjoyed (See the case of Kharak Singh v. State of U.P. : 1963CriLJ329 ). To maintain his life the detenu is entitled to receive proper medical treatment. If to preserve his eye sight it is necessary that he must wear a pair of specs as prescribed by the eye specialist that must be supplied to him, specially in the instant case where he has no independent source of income and no subsistence allowance to enable him to purchase a pair of specs. Even though the word 'treatment' in the rules of the Order and of the Jail Manual is construed in narrow sense to mean merely administering drugs as palliative measure, those rules cannot be treated as exhaustive of the matter of regulating the conditions of detention. The rigiht of the detenu to preserve his eye sight would cast an imperative obligation on the State to supply full medical treatment including supply of specs as medical appliances for preservation of his eyes, as otherwise he will be deprived of his eye sight which would reduce the detenu to a mere animal existence. This obligation on the part of the State would arise even apart from the Order and the rules of the Jail Manual which is in accord with the spirit of the Order providing for supply of bedstead, mosquito poles, mosquito nets, pegs and the like to the detenu at State cost

7. In the aforesaid analysis of the provisions of the Act, the order, the rules of the Jail Manual and the aforesaid fundamental obligation of the State towards its citizens, we have no doubt that the State is bound to supply a pair of specs as per the prescription of the eye specialist. We, therefore, direct the opposite parties to provide the detenu with a pair of specs at State cost as per the prescription of the eye specialist.

The writ application is, accordingly, allowed; but in the circumstances, there will be no order for costs.

P.K. Mohanti, J.

8. I concur.


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