Section 224 IPC; Jaya Talakshi Chheda Vs. State of Maharashtra [Bombay High Court, 14-10-2016]

Indian Penal Code, 1860 – Section 224 – Attempt to Escape from the Police Custody – Unlawfully departed from the legal custody by non surrendering to the Prison authorities after the expiry of parole period – Held, Court permitted the petitioner to continue in the hospital until treatment was completed after completion of the parole period. The provisions of Section 224 of the Indian Penal Code would not be attracted to the facts of this case. There was no question of any intention on the part of the petitioner to escape or to make any attempt to escape from the custody of the Jail Authorities in view of the specific order passed by the Division Bench. It is not the case of the respondent that the petitioner has committed any violation of the order passed by the Division Bench. Filing of FIR and registering the crime report against the petitioner by the respondent on the ground that the petitioner had alleged to have committed offence under Section 224 of the Indian Penal Code by not surrendering the Jail Authorities upon completion of parole period is a gross abuse of process of law and thus FIR lodged by the respondent against the petitioner and the crime report registered against the petitioner deserves to be quashed and set aside.

Custody

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CORAM : A.S.OKA & R.D. DHANUKA, JJ.

14th OCTOBER, 2016

WRIT PETITION NO. 1917 OF 2016

Smt. Jaya Talakhsi Chheda ) Age : 52 years, Occ.:Housewife, ) Residing at Room No.126/3518, ) Pang Nagar, Vishal Housing Society, ) Ghatkopar (E), Mumbai ) (At presently in Nashik Central Prison, ) Nashik) ) ….. Applicant (Orig.Accused) VERSUS The State of Maharashtra (At the instance of DCB/CID Unit No.1 ) ) Mumbai. Vide C.R.No.116 of 2008) ) ….. Respondent Mr.Niranjan Mundargi, i/b. Mr.Santosh Shankar Musale for the Petitioner. Mr.K.V.Saste, A.P.P. for the Respondent/State.

JUDGMENT

R.D. Dhanuka, J.

By this writ petition filed under Articles 226 and 227 of the Constitution of India, read with section 389 of the Criminal Procedure Code, 1973, the petitioner has applied for quashing and setting aside the Crime No. 185 of 2016 registered with the Pantnagar Police Station and seeks suspension of the sentence for temporary period of 16 weeks from the date of the order to enable the petitioner to take recourse of medical treatment without any mental pressure or of hypertension. Some of the relevant facts for the purpose of deciding this petition are as under :-

2. By an order dated 31st July 2013, the petitioner was convicted by the learned Sessions Judge at Greater Bombay for an offence punishable under section 120(B), 302 read with section 34 of the Indian Penal Code, 1860 and was sentenced to suffer rigorous imprisonment for life and to pay fine alongwith other accused named therein. The petitioner impugned the said order dated 31 st July, 2013 by way of Criminal Appeal (1012 of 2013) before this court. The said appeal filed by the petitioner is admitted and is pending for hearing and final disposal.

3. Sometimes in the year 2013, the petitioner preferred an application (1785 of 2013) inter alia praying for a temporary bail on medical grounds before this court. By an order dated 23rd December, 2013, this court rejected the said bail application. This court however directed the respondent to transfer the petitioner from the J.J.Hospital to Jaslok Hospital for treatment at her own cost including the room charges, medicine and the charges of the medical officers for performing the surgery etc. This court however rejected the application for her release on temporary bail.

4. It is the case of the petitioner that son of the petitioner was also suffering from some serious health ailment and died in the prison. The petitioner thereafter applied for furlough to perform last rites of her son. Since the Jail Authority did not allow the said application, the petitioner filed criminal application (465 of 2014) before this court. By an order dated 25 th March, 2014, this court directed the Superintendent of Yerawada Central Jail, Pune to permit the petitioner to perform last rites and rituals of her deceased son by visiting Mumbai under police escort and directed the Divisional Commissioner, Pune to decide the application for parole.

5. The petitioner thereafter filed a criminal application (1541 of 2015) before this court inter alia praying for temporary bail to enable the petitioner to undergo angiography and angioplasty. By an order dated 15th January, 2016, this court directed the respondent to get the applicant examined and investigated as suggested by the CMO, Nashik Road, Central Prison and to take further necessary steps as per further advise of Specialist/Physician in J.J.Hospital. This court directed the learned Assistant Public Prosecutor to submit a report of the physical health of the petitioner on the next date in order to carry out the exercise referred in the said order.

6. By an order dated 18th March, 2016, this court rejected the said application for temporary bail. This court however directed that if the Chief Medical Officer, Nashik Central Prison so desires, the petitioner could be again re-examined in the J.J.Hospital by a senior Cardiologist. This court in the said order considered the medical report of the petitioner signed by the Chief Medical Officer, Nashik Road Central Prison dated 17th March, 2016 and the report submitted by the Department of Cardiology, J.J.Hospital dated 3 rd March, 2016.

This court was of the view that the petitioner was put on medical treatment and did not require any intervention procedure like angiography at that time. The Medical Officer however advised to continue medical treatment, stress test on Friday and regular cardiology follow-up on Friday.

7. On 26th April, 2016, the petitioner was released on furlough leave by Nashik Central Prison, Nashik. It is the case of the petitioner that on 10 th May,2016, the petitioner suffered severe chest pain and visited the Civil General Hospital, Thane. The doctor of the said hospital suggested her to undergo the angiography. It was her case that she fell down at home and she sustained grave inner injury and was thereafter taken to her family doctor Mr.Sharad Jhakatia. The said doctor advised her for M.R.I.scan of whole body. It is her case that she thereafter visited Parel Midtown on 19 th May, 2016 for M.R.I.scan. The learned doctor made an observation regarding spine fracture at neck, possibility of D4-D5 infective tuberculous spondylodiscities and slip disc at L1, L2 and L3 lower spine.

The petitioner therefore filed a criminal application (654 of 2016) before this court inter alia praying for temporary bail on the medical ground in view of the injury sustained by her on 18th May, 2016 and praying for an order and direction that the Jail Authority to admit the petitioner at J.J.Hospital by shifting her from St.George’s Hospital after taking custody of the petitioner.

8. On 27th May, 2016, the Vacation Court recorded the statement made by the Assistant Public Prosecutor that the facilities for Neurology as well as angiography were available in J.J.Hospital at Mumbai. This court accordingly held that this court was not inclined to entertain the said criminal application. This court however directed that after taking her custody from St.George’s Hospital, the petitioner should be admitted in the J.J.Hospital wherein necessary treatment for spinal problem as well as cardiac treatment could be undertaken. The relevant paragraphs of the said order are extracted as under :-