The Judgment of the Court was delivered by

P.S Asopa, J.:— By this writ petition, the petitioner who is in judicial custody and against whom many trials are going on in many criminal cases, has sought a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to obtain specialist treatment of his various diseases as may be medically advised at the hospital and by the doctors of his choice at his own cost.

2. Briefly stated the relevant facts of the case are that the petitioner was arrested in the course of investigation in FIR No. 146/2003 P.S Vidhyadhar Nagar, Jaipur and has been in custody since 7.6.2003 The allegations against the petitioner relate to the commission of offences under Section 401, 411, 413 IPC and Section 5/25(1) and Section 14/25(2) of the Antiquities and Art Treasurers Act. Apart from the aforesaid case, there are many criminal cases pending against the petitioner before various Courts in the State of Rajasthan. From time to time the petitioner has been examined by the Jail Doctors or the Doctors of the SMS Hospital and he was found to be suffering from various diseases like inguinal hernia, hiatus hernia, inflammation of Gall bladder & enlarged prostrate and dental etc. When the proper treatment was not given, the petitioner filed the writ petition being SBCWP No. 6894/2003 and this Court directed the respondents to take assistance of a specialist from a Government hospital in the department of Gastroentrology or if necessary a team of specialists who can visit the petitioner in Jail and assess about his ailment and his health condition with the above directions the writ petition was disposed of on 19.11.2003

3. Thereafter the petitioner moved an application on 30.11.2006 before the trial Court under Secs. 167 and 309 Cr. P.C Praying therein that the order of the High Court may be complied with. The trial Court observed that under the aforesaid provisions of law, it has no power to make available special medical treatment to the under trial prisoners. As regards the noncompliance of the order of the High Court, the trial Court observed that petitioner is free to move an application before High Court.

4. Subsequently, on 16.6.07, on examination, it was found that the petitioner is suffering from enlarged prostate, then again the petitioner was examined on 6.12.2007 and it was found that he also was suffering from inflammation of the gallbladder and hernia. The petitioner was also advised to go for dental checkup. On 24.2.2007, the Additional Sessions Judge (Fast Track) No. 1, Jaipur recorded that he had no right to determine as to the place of the treatment of an under trial prisoner and it is for the jail authorities to decide the matter. It is further stated in the writ petition that the jail authorities were grossly negligent in providing treatment to the petitioner and referred him to the SMS Hospital but the petitioner did not agree for the surgery of Hernia in S.M.S Hospital, Jaipur.

5. The counsel for the petitioner submits that he has a fundamental right under Article 21 of the Constitution of India to be treated by the doctor of his own choice at his own expenses. Not allowing the petitioner to get himself treated by the doctor of his own choice at his own expenses is violative of Art. 21 of the Constitution of India. The counsel for the petitioner further submits that the guidelines/documents filed by the respondents relating to the medical treatment in SMS Hospital, Jaipur are not relevant.

6. The counsel for the petitioner in support of above mentioned submissions has placed reliance on the judgments of Supreme Court rendered in Nilabati Behera (SMT) @ Lalita Behera v. State of Orissa and reported in (1993) 2 SCC 746, D.K Basu v. State of W.B reported in (1997) 1 SCC 416 : (1997 (1) RLW (SC) 95) and Bibhuti Nath Jha v. State Of Bihar. reported in (2005) 12 SCC 286.

7. The above cited case of Nilabati Behera (supra) (1993) 2 SCC 746, relates to death in police custody and the claim of compensation. However in para 31, the Supreme Court has held that even the convicts, prisoners or undertrials cannot be denied the fundamental right of Art. 21 of the Constitution of India except according to the procedure established by law. The Supreme Court further observed that his liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. Para No. 31 of the said judgment is as follows:

“31. It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious.”

8. The Judgment rendered in D.K Basu v. State of W.B (1997) 1 SCC 416 (supra) is also in case of death in police custody where the Supreme Court has laid down various guidelines before making arrest and compensation in case of custody violence/death. In para No. 9 of the judgment, the Supreme Court has observed that the protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. In case of violation of fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India, monetary compensation should be awarded. Para No. 9 of the said judgment is as follows:

“9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lockup, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other lawenforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.”

9. The counsel has further placed reliance on last part of para 22 of the said judgment where the Court has observed that does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights’ jurisprudence. The answer, indeed, has to be an emphatic “No”. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. Last part of para No. 22 is as follows:

“No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights’ jurisprudence. The answer, indeed, has to be an emphatic “No”. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.”

10. In the case of Bibhuti Nath Jha v. State Of Bihar. (2005) 12 SCC 286 (supra), cited by the counsel for the petitioner, the Medical Board recommended that accused-appellant be given treatment in reputed mental hospital in Ranchi, therefore, bail application was not pressed.

11. The counsel for the respondent in the reply has not disputed the fact of illness of the petitioner and submitted that the medical investigation was carried out and the report was given to the petitioner. The accused has not consented for RIH Operation in SMS Hospital, Jaipur and without consent operation is not possible. Even after his refusal, he is getting best medical aids and facilities. The Jail authorities are also taking assistance of specialists for the treatment of the petitioner. It is further submitted that day to day hearing is going on in the trial as per High Court direction where presence of accused is necessary. The counsel for the respondents further submitted that after Court hours and after completion of the prosecution witnesses the petitioner is free to take medical assistance as per his own choice and at his own cost.

12. On raising the quarry that “Is there any specific provision in the jail manual for treatment?, the counsel for the respondent has referred to only the Rajasthan Prisoners (Attendance in Courts) Rules, 1956 (hereinafter referred to be as “the Rules of 1956”), when again pointedly asked, whether there was any other specific rule for medical treatment or any guidelines available?, the counsel for the respondent has placed the circulars. The Rules of 1956 cited above, relates to the attendance in Courts and not for medical treatment. However, the counsel for the respondent has placed reliance on some of the circulars dated 29.6.94, and 9.5.95 for adequate treatment and admission of the accused in the hospital.

13. In view of above, there is no dispute that the petitioner requires treatment for which he was examined by the Government Doctors and the exact disease was detected and the petitioner refused to be treated by the Government Doctors in SMS Hospital, Jaipur. It is also not disputed that treatment of disease with which the petitioner is suffering is not available in SMS Hospital, Jaipur.

14. The dispute is whether the petitioner is entitled to be examined by the doctor of his own choice at his own expenses. The respondents were and are prepared to allow the petitioner to be treated in SMS Hospital, Jaipur in the judicial custody but the accused has refused for operation of Hernia and filed the present writ petition for treatment from the doctor of his own choice at his own expenses.

15. In the aforesaid judgments of Supreme Court cited by the counsel for the petitioner, it is clear that reasonable restrictions are permitted in the case of undertrial prisoners and convicts on exercise of their fundamental right of life guaranteed under Article 21 of the Constitution of India. Hence, they cannot be treated at par with the citizens who are outside the jail. The basic difference is of freedom available to undertrial prisoners/convict and the citizen who is outside the jail in exercise of the said fundamental right guaranteed under Article 21 of the Constitution of India. The citizens are entitled for protection of fundamental right guaranteed under Article 21 of the Constitution of India subject to the reasonable restriction by State by taking resort to regulate the same, therefore, the contention/concession made by the counsel for State to allow the petitioner for treatment after Court hours at his own expenses is not accepted, being contrary to the aforesaid restriction in exercise of fundamental right under Article 21 of the Constitution of India by an undertrial prisoners as held by Supreme Court in aforesaid judgments. Nevertheless the right to life under Article 21 of the Constitution of India is subject to the above restriction available to the petitioner even if there is no provision in the jail manual.

16. From the practice prevailing for medical examination of the prisoners/convicts, the convict/prisoners are to be first examined by the jail doctor and they further act as per the advise of the jail doctor. The petitioner was examined by the jail doctor and further services of specialized Government Doctors of SMS Hospital were taken. The SMS hospital is attached with Medical College since last more than 50 years and the doctors of SMS have earned name and the Awards at National as well as International level as would be evident from the documents submitted by counsel for the respondents. Thus the SMS Hospital is the reputed and biggest Referral Hospital in Rajasthan. The concession made by the counsel for the State that treatment of petitioner by the doctor of his own choice at his own cost after Court hours and after completion of the prosecution witness is not justified on account of availability of proper treatment, therefore, there appears to be no reason for not taking treatment which is available in SMS Hospital.

17. In view of above, the writ petition is partly allowed and the petitioner is permitted to be treated in judicial custody at SMS Hospital, Jaipur for the disease which has been diagonized by the specialist doctors.

18. The State Government is directed to frame the suitable guidelines for medical treatment of the undertrial/convict prisoners within a period of three months.

19. A copy of this order be sent to the Secretary, Home Department, Govt. of Raj., Jaipur for compliance.